Empire Portland Cement Co. v. Payne, Bradshaw, McMahon & Co.

Sherwin, C. J. The Iowa Central Railway Company contracted with Payne, Bradshaw, McMahon & Co. for the construction of a bridge on its line of road, and the- plaintiff furnished said contractors cement used in building the bridge,, for which there is a balance due of $4,055.59. The last, item of material was furnished on the 25th' day of April, 1900, and the plaintiff’s lien statement was filed and notice thereof was served in May, 1902, some time after the principal contractors had been paid in full. In March, 1900, the railway company made a payment of $2,500 to the contractors, and in April of the same year it paid to their laborers who had not filed liens a sum in excess of $2,000. The appellant contends that these two payments should not have been made because the railway company then knew that it had furnished material for the bridge, for which it had not been paid, and, such being the case, that the railway company is liable to it .for the aggregate amount of the two payments. The precise point was decided adversely to the appellant’s contention in Thompson & Thompson v. Spencer, 95 Iowa, 265, where the subcontractor failed to file his lien within the statutory period, and where the owner had made payments which would not relieve him from liability to the subcontractor, if the latter had filed his statement within the time provided by the statute. The various provisions of the statute were there discussed and harmonized as far as is possible, and we need not again 732 go over the same ground. The conclusion was that a subcontractor who fails to file his claim for .a lien until after the expiration of thirty days is entitled only to the amount unpaid on the contract at that time. See, also, Walker v. Queal, 91 Iowa, 704. The lien is statutory, and whatever rights a subcontractor has, who has not complied with the provisions of sections 3092 and 3093, must be found in the provisions of section 3094- (Iowa Code) ; and, as it is therein expressly provided that the lien created thereby shall be enforced only to the extent of the balance due from the owner to the contractor, it is manifest that the owner’s knowledge that a subcontractor has furnished material for which he has not been paid can create no liability, even if there might have been liability if the subcontractor’s claim had been filed within the limit of time fixed by the statute. See, also, Lindsay & Phelps Company v. Bruno Zoeckler et al, 128 Iowa, 558. The cases relied upon by the appellant do not decide the question involved here, and are therefore not controlling. The judgment below is right, and it is affirmed.