Cutler & Parker v. McCormick, Hall & Porter

48 Iowa 406

• Court: Supreme Court of Iowa
• Decided: April 20, 1878
• Status: Published

Opinion

Day, J.

1. mechanic’s lien.: sub-contractor. The errors assigned are — First, the court erred in sustaining the demurrer of intervenors to plaintiffs’ answer to their petition; second, the court erred in ren- . , . clermg judgment against plaintiffs for costs, on the trial of the issue of law made by intervenors’ demurrer to-plaintiffs’ answer to their petition; third, the court erred in rendering judgment in favor of intervenors for the sum due. from defendant, independent school district of East Waterloo, to defendants McCormick, Hall & Porter, and in deciding and adjudging that plaintiffs, upon the facts disclosed in the pleadings, were not entitled to judgment against said school district for the amount of their claim. These assignments are so intimately blended, that the case can be better decided by considering and determining the legal status and rights of the parties under the pleadings, than by disposing seriatimof the assignments of errors.

The petition of plaintiffs alleges that, of the material furnished by them to McCormick, Hall & Porter, two hundred and thirty-four dollars and eight cents in value was furnished between April 19 and July 18, 1875, .one hundred and fifty-one dollars and ninety-one cents between July 18 and August 25, 1875, and one hundred and twenty-one dollars and fifty-three cents between August 25 and Septembr 6 of the same year, and that on this account there is a credit of one hundred and five dollars and eighty cents. The petition also-alleges that plaintiffs filed a mechanic’s ljen on said building,, for the material so furnished, on the 7th day of September, 1875, and immediately gave written notice to McCormick, Hjall & Porter, and said independent school district of East. Waterloo, of the filing of such lien. Plaintiffs did • not give-notice to the said independent school district, before or at the time of 'furnishing the material, of their intention to furnish tbe same, and tbe probable value thereof, as provided in section 2131 of the Code, as amended by chapter 49, Acts Fifteenth General Assembly.

The lien was claimed under section 2133 of the Code. This section, as amended by chapter 49, Acts Fifteenth General Assembly, is as follows: “Every sub-coñtractor, or person furnishing material, machinery or fixtures, or performing labor by virtue of a contract with a sub-contractor, may, at any time within six months after his labor is done or materials furnished, make a statement thereof in writing, supported by affidavit, that the same is just and true, and file the same with the clerk of the District Court of the proper county, and give notice thereof, with a copy of such statement, to the owner, his agent, or trustee, and to the contractor (or) subcontractor ; and from and after the service of such notice his lien therefor shall have the same force and effect, and be prosecuted in like manner, as a lien by the contractor, but shall be enforced against the property only to the extent of the balance due to the contractor, or sub-contractor, as the case may be, at the time of the service of such notice upon the owner, his agent, or trustee.” While this statute provides that the lien shall be enforced only to the extent of the balance due to the contractor, or sub-contractor, at the time of the service of the notice, yet it is apparent that the object of the provision is to protect the owner from the payment of any ■sum greater than that contemplated in his contract. A construction of this section, according to its purpose and spirit, would doubtless permit the enforcement of the lien against any sum due from the owner, or thereafter becoming due, under his contract. The real question in this case then is, was anything due, or did anything become due, from the independent district, to McCormick, Hall & Porter, after notice of plaintiffs’ lien on the 7th day of September, 1875 ?

2_ conditional acceptance. Here it becomes necessary to notice the effect of plaintiffs^ answer to the intervenors’ petition. This answer admits most of the allegations of the petition of tfie intervenors, and as to others of them it alleges that plaintiffs “have not knowledge sufficient to form a belief.” This allegation tenders no issue, under the doctrine of Manny & Co. v. French, 23 Iowa, 250. It follows that all the allegations of the intervenors’ petition are admitted, and that the answer thereto alleged no new fact, except as regards the conditional acceptance of the orders drawn in favor of intervenors by McCormick, Hall & Porter. From the allegations of the petition of intervenors the following facts appear: Before plaintiffs’ lien was filed, McCormick, Hall & Porter had been paid the first three payments provided for in their contract, and they had drawn, in favor of intervenors, an order to be paid out of the fourth payment for fifteen hundred dollars, and one to be paid out of the fifth and last payment for two thousand four hundred and fifty-two dollars and ninety-seven cents. Before the budding was so far completed as to entitle McCormick, Hall & Porter to the fourth payment, they failed to provide materials and workmen, and the district was compelled to complete the building, as it had a right to' do under the contract, and in doing so necessarily expended the whole of the last two payments, except the sum of about six hundred dollars. It follows that, at no time after plaintiffs’ hen was filed, did the independent district in question become liable under its contract for more than this sum of six hundred dollars. Did this become due to McCormick, Hall & Porter so that the plaintiffs’ hen attached thereto ? This question involves a determination of the effect of the orders drawn in favor of intervenors. These orders operated as an editable assignment to intervenors of the sums named therein. When notified of the orders, the district became in equity bound to pay these sums when they became due to the intervenors. See 2 Story’s Equity Jurisprudence, § 1044.

This equitable obligation would exist without any acceptance of the orders upon the part of the district. But it is claimed that the rights of intervenors are materially affected by the conditional acceptance. The. conditions attached to the acceptance are the same as existed between the district and the contractors. Whenever the contractors became entitled to anything under their contract, to the extent of the sums named in the orders, intervenors became entitled to it under the acceptance. The intervenors furnished material for the erection of the building on which plaintiffs claim a lien, and their equities are just as good as those of plaintiffs. We think nothing became due the contractors upon which plaintiffs’ lien attached, and that intervenors are entitled to the sum in the hands of the school district. See Copeland v. Manton, 22 Ohio State, 398; Cahoon v. Levy, 6 Cal., 295; McCelpin v. Duncan, 16 Cal., 126; Blythe v. Poultney, 31 Cal., 233.

The court did not err in sustaining the demurrer, nor in rendering judgment for the intervenors.

Affirmed.