Kennedy v. Paine

1 E.D. Smith 651

Opinion

By the Court. Ingraham, First J.

Without expressing any opinion upon the question, whether or not the defendant can, in any event, be-made liable in this action under the lien law, it is decisive of this case that it is conceded that he has paid to Kahoe, the person with whom, he made the contract for the sale of the lots and advance upon the buildings, not only all he contracted to pay, but had actually made greater advances of money than he agreed to do. The amount agreed to be paid or advanced, on condition of the erection of the buildings, was $24,000, and the amount which it is admitted by the case was advanced, is $38,100.

We have heretofore decided, in Doughty v. Devlin, (ante, p. 625,) that the owner was not liable beyond the amount of his contract, and if there was any liability on the part of the defendant at all, it was discharged when he paid to Kahoe, before the filing of the notice of lien, the whole amount which by his contract he was bound to advance.

The defendant is entitled to judgment on this case.