Hug v. Hintrager

Given, J. 1. Mechanic's lien: subontractor : money reserved for payment of. — I. As to plaintiff’s claim, it appears that Needham, having contracted to furnish the mate-rial and erect the retaining wall, sublet 1° John Coogan, who contracted with plaintiff to furnish the stone. Plaintiff’ famished stone between October 13 and November 12, 1885, that went into the wall, amounting to sixty-five dollars. On November 20, following, the [362] plaintiff filed his statement for a lien, and served notice thereof on Hintrager. Plaintiff alleges that on settlement with Needham and Coogan for the wall, sixty-five dollars was left in Hintrager’s hands to be paid to him fdr the rock furnished. Hintrager claims that Need-ham was to furnish the rock from his own quarry, and that, supposing that he had done so, and before he had any knowledge to the contrary, he paid Needham and Coogan, on Needham’s order, in full for the wall. While there is some conflict in the testimony on these points, we think it fairly sustains the conclusion that Hintrager knew that plaintiff had furnished the rock before he made the payment of $79.05, November 16, and that that amount was paid, leaving sixty-five dollars in his hands to be paid to the plaintiff. The one hundred dollars paid October 31, on account of painting and stone-mason work, etc., is not shown to relate to this stonework, and is fully explained by the house contract. Some questions are made as to the sufficiency of the statement filed, but, in view of what we have just stated, the questions are immaterial as between plaintiff and Hintrager, as owner of the real estate sought to be charged. The judgment and decree of the district court, in favor of plaintiff, should be affirmed. 3. —: —: delay in filing claim and giving notice. II. There is no question but that the defendant Donahue furnished the material and did stonework in the erection of the dwelling-house, to the amount of $359.86, of which but thirty doljarg ]iag been paid. Nor is it questioned but that Hintrager knew that he was furnishing the material and doing the work; indeed, it is provided in the contract that “ stone-mason work to be done by Thomas J. Donahue.”’ Donahue completed his work on July 15, 1885, and on October 14 filed his statement for a lien, and gave notice thereof to Hintrager. As the statement was not filed and notice given within thirty days from the completion of the work, Hintrager had a right to pay the contractor without regard to the lien of the subcontractor. McClain’s Code, sec. 3315. If, at the [363] time the statement was filed and notice served, there was money due, or to become due, from Hintrager to Needham under the contract, the lien would attach for the amount due, or to become due, to the contractor, not to exceed the amount due to the subcontractor. As already stated, the written contract is silent as to the time of payment, but the parties thereto seem to have agreed that Hintrager would pay according to the contract price, as the work progressed, in pursuance of which he paid Needham fifteen hundred dollars, October 13, and two hundred dollars cash on the day the statement was filed and notice given. Needham not only failed to complete the work, but entirely abandoned it about November 23. Without stating the items in' detail, we may say that it satisfactorily appears that on October 14, 1885, Hintrager was not indebted to Needham on the contract, nor did he thereafter become so indebted. It follows, therefore, that defendant Donahue did not acquire any lien against the property of Hintrager, by virtue of his statement and notice. The decree of the district court as to defendant Donahue is affirmed on his appeal. 3. —: —: who to verify statement. III. Oarr, Ryder & Wheeler- furnished lumber, etc., under contract with Needham, for the buildings other improvements made under the first contract and supplement, to the amount of ^387.43, the last item of which is stated as having been furnished November 28, 1885, the last preceding item having been furnished October 19. On November 30, 1885, Carr, Ryder & Wheeler filed their statement, claiming a mechanic’s lien, verified by E. A. Engler ; and on December 4, 1885, served notice thereof on appellant. Hintrager. They aver that Hintrager knew that they were furnishing said materials at the time they were delivered, and at the times he made payments to Needham. Appellant Hintrager objects to the sufficiency of the statement for a lien, on the ground that it was not verified by any member of the firm. E. A. Engler was an employe of the firm, having authority to [364] make contracts for them. He made the contract with Needham under which this material was furnished, and had personal knowledge of the whole transaction, including the fact of the delivery of the materials. The Code requires that the statement shall be verified by affidavit, but does not provide that such affidavit shall be by a claimant for the lien. McClain’s Code, sec. 3314; Lamb v. Hanneman, 40 Iowa, 41. 4. —: —: time of notice : last time of account. The last item, furnished November 28, tC One p. c. blind, one dollar,” was delivered to Needham at the house, and, after Needham abandoned the worfe) Hintrager sent the blind back to Carr, Ryder & Wheeler. Hintrager contends that this blind was not called for under the contract with Needham, and that it had been furnished for the purpose of extending the account, so that Carr, Ryder & Wheeler could file their lien and give notice, within thirty days thereafter ; that the last preceding item was more than thirty days prior to the filing of their statement, and giving notice thereof; and that said blind never went into the building. We think the weight of the testimony sustains the conclusions that the blind was furnished in good faith, to be used in the building, and that • appellant Hintrager could not defeat the right of Carr, Ryder & Wheeler to a lien, by returning the blind. This item was evidently a continuation of the same account, and entitled Carr, Ryder & Wheeler to a lien for all the items, by filing their statement and giving notice thereof within thirty days from the date of said last item. 5. —: —: unwarranted payment to principal contractor. While it is true the contract with Needham states that “ Randall’s lumber is to be used,” we are satisfied, from the testimony, that Mr. Hintrager knew that- material was being furnished by Carr, Ryder & Wheeler before he made the payment of fifteen hundred dollars, October 6, 1885. The case is within the rule laid down in Lumber Co. v. Woodside, 71 Iowa, 359. Carr, Ryder & Wheeler, having filed their statement, and given notice [365] thereof, Within thirty day, and Hintrager having knowledge of their right to perfect such a lien at the time he made.the payment of fifteen hundred dollars to Need-ham, he must be held to have made the payment at his own risk, and subject to the right of Carr, Ryder & Wheeler to assert their lien. This view of the case renders' it unnecessary that we determine whether Needham was entitled, on an accounting with Hintrager, to an allowance for excavating as extra. There is no dispute as to Hintrager’s statement of the account, as it stood between him and Needham, excepting as to this allowance of extras for excavating; but, even that allowance would not equal the balance due to Hintrager from Needham for payments made and expenses incurred in completing the work. As Carr, Ryder & Wheeler’s right to a lien does not depend upon whether Hintrager was indebted to Needham, we need not further inquire as to that subject. TY. J. S. Randall furnished material for the house and other improvements, under contract with Needham, to the amount of §354.85, for which he-filed a statement, duly verified, claiming a mechanic’s lien, on November 28, 1885, being within thirty days from the last item. Randall’s right to the lien involves the same question as those presented on the claim of Carr, Ryder & Wheeler. It follows from our conclusions that Randall is entitled to have his lien established. Our conclusions upon the whole record are that the judgments and decrees of the district court should be Affirmed.