Main Street Hotel Co. v. Horton Hardware Co.

The opinion of the court was delivered by Martin, C. J. : I. The first point suggested is whether the parties that performed labor and furnished material in the construction of this building under subcontracts 'while the law of 1872 was in force could, after the repeal of that law, proceed either thereunder or under the act of 1889 to perfect mechanics’ liens upon the property. It is provided in chapter 104, General Statutes of 1889, ¶6687, which took effect October 31, 1868, that “the repeal of a.statute does not . . . affect any right which accrued . nor any proceeding commenced under or by virtue of the statute repealed” ; and again, “ the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” A right accrued to these subcontractors under the act of 1872 by performing work and furnishing materials in the erection of the building. (Weaver v. Sells, 10 Kan. 609 ; Brown v. School District, 48 id. 709, 711; Nixon v. Cydon Lodge, ante, p. 298.) Under the act of 1862, a subcontractor was required to file his lien [454] statement within 60 days after the completion of the building; but under that of 1889 he must file it within 60 days after furnishing the last item of his account. And by the rulings of this court upon the act of 1872, where the work was abandoned either by the fault of the contractor, the owner, or both, the subcontractor might treat the building as completed, for the purpose of filing a mechanic’s lien. (Shaw v. Stewart, 43 Kan. 572, 577 ; Lumber Co. v. Savings Bank, 52 id. 410, 414.) The right to the liens accrued under the act of 1872, but the procedure for enforcing them, which included the filing of the lien statements, the giving notice thereof, and the commencement of action thereon, is governed by the act of 1889. (Nixon v. Cydon Lodge, supra.) By the act of 1872, the time limited for the commencement of the action to enforce the lien was one year after the completion of the building; but, under the act of 1889, the suit must be brought within one year after the filing of the lien statement, and therefore these statements were not filed too soon, nor the action prematurely commenced. II. The Ambrose Manufacturing Company did not file its lien until nearly 10 months after the furnishing of the last item of its account, but it stood ready to furnish the remaining materials, amounting to $124 in value, as soon as they should be needed, and in accordance with its agreement with the contractor ; and, clearly, it had a right to file its lien statement within 60 days after the abandonment of the contract by Malone, as it could not be expected to furnish the remainder of the materials after that time under its subcontract. The Horton Hardware Company furnished items insignificant in amount from June 15 to June 20, 1889, before it had any knowledge of the [455] abandonment by Malone; but as the hotel company failed to notify the hardware company of the abandonment and received the benefit of the goods furnished, we think it has no right to complain ; and the same remarks apply to the claim of John Collins for painting, a small part of which was done after the abandonment by Malone, but without notice thereof, by reason of the hotel company withholding the information. III. We think the evidence justified the referee in finding that the hotel company failed to make its payments according to the terms of its contract with Malone, and that this was the principal cause of the abandonment; and as it was provided in the contract that Malone and his bondsmen should not be liable for any delays caused by the failure of the hotel company to make its payments, Hugh Caugliey, as surety, was properly relieved from any liability upon the bond, especially as it is found by the referee that the building could have been completed at the contract price by Malone, if payments had been promptly made and the work pushed with a large force; and we see no error in allowing judgment in favor of Hugh Caughey against the hotel company for the pro rata amount of the order for $1,701.86. IV. The lien claimants, in their several cross-petitions in error, complain because they were not allowed the full amount of their claims, but were compelled to prorate, as mentioned in the statement. But subcontractors are bound to take notice of the original contract, and they cannot obtain liens in excess of the amount which the owner has agreed to pay the original contractor. (Nixon v. Cydon Lodge, supra; Laws 1872, ch. 141, §2; Laws 1889, ch. 168, §3.) V. The claimants also complain of the ruling of the [456] referee and the court relieving the real estate from the burden and ■ remitting them to their several actions on the bond given in pursuance of section 13 of said act of 1889 ; and their position must be sustained, in accordance with the reasoning contained in this opinion. The right to a lien upon the real estate, which accrued under the act of 1872 by performing labor and furnishing materials, was not divested by the giving of a bond as authorized by said section 13 of the subsequent act. ( Weaver v. Sells, supra.) The court below will be directed to modify its judgment so as to allow the pro rata amount of the several claims as liens upon the real property. In all other respects the judgment will be affirmed. All the Justices concurring.