Stinson Dickinsheets v. Specialty Homes

New Jersey Court of Chancery

Stinson Dickinsheets v. Specialty Homes

152 A. 327, 107 N.J. Eq. 295, 1930 N.J. Ch. LEXIS 23

CourtNew Jersey Court of Chancery

DecidedDecember 4, 1930

StatusPublished

Cited by1 cases

This text of 152 A. 327 (Stinson Dickinsheets v. Specialty Homes) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stinson Dickinsheets v. Specialty Homes, 152 A. 327, 107 N.J. Eq. 295, 1930 N.J. Ch. LEXIS 23 (N.J. Ct. App. 1930).

Pincite

Opinion

The motion against the bill filed herein cannot be sustained.

The well recognized rule prohibiting the prosecution of inconsistent remedies or remedies based upon inconsistent or repugnant claims is in no way invaded by the facts averred in the bill.

The pending stop-notice action at law is a purely statutory remedy, and by the statute is limited to the recovery from the owner of the amount due or which under the contract should be due from him to the contractor under the specific terms of the filed contract. That statutory remedy against the owner arises from the exercise by the owner of his privilege to file the contract and specifications; more than that amount cannot be recovered against him.

Complainant's bill in equity asserts obligations wholly independent of the statutory obligation of the owner to pay to the contractor a specific price for the labor and materials specified in the filed contract. The bill alleges that $39,000, $8,010 in excess of the contract price, was by agreement set aside by the mortgagee as a special fund in trust, to be applied to the payment of all persons to whom the contractor might become indebted for labor or materials, and that the mortgagee, owner and contractor so represented to persons who were requested to furnish labor and materials, and that complainant furnished the materials which were supplied by it in reliance upon the trust fund. It is that trust which the *Page 297 bill seeks to establish and enforce. By the averments of the bill there appears to be about $12,000 in that trust fund at this time which has not been applied to the payment of claims for labor and material supplied to the building. It seems clear that the pursuit of the statutory remedy, and the enforcement of the trust for the payment of such amount as may not be so recovered, are purely cumulative and concurrent remedies, and that the former is in no way repugnant to or in conflict with the latter.Shoemaker v. Maloney, 102 N.J. Law 363; Buck v. Colbath,70 U.S. 334.

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The motion against the bill filed herein cannot be sustained.

The well recognized rule prohibiting the prosecution of inconsistent remedies or remedies based upon inconsistent or repugnant claims is in no way invaded by the facts averred in the bill.

The pending stop-notice action at law is a purely statutory remedy, and by the statute is limited to the recovery from the owner of the amount due or which under the contract should be due from him to the contractor under the specific terms of the filed contract. That statutory remedy against the owner arises from the exercise by the owner of his privilege to file the contract and specifications; more than that amount cannot be recovered against him.

Complainant's bill in equity asserts obligations wholly independent of the statutory obligation of the owner to pay to the contractor a specific price for the labor and materials specified in the filed contract. The bill alleges that $39,000, $8,010 in excess of the contract price, was by agreement set aside by the mortgagee as a special fund in trust, to be applied to the payment of all persons to whom the contractor might become indebted for labor or materials, and that the mortgagee, owner and contractor so represented to persons who were requested to furnish labor and materials, and that complainant furnished the materials which were supplied by it in reliance upon the trust fund. It is that trust which the *Page 297 bill seeks to establish and enforce. By the averments of the bill there appears to be about $12,000 in that trust fund at this time which has not been applied to the payment of claims for labor and material supplied to the building. It seems clear that the pursuit of the statutory remedy, and the enforcement of the trust for the payment of such amount as may not be so recovered, are purely cumulative and concurrent remedies, and that the former is in no way repugnant to or in conflict with the latter.Shoemaker v. Maloney, 102 N.J. Law 363; Buck v. Colbath,70 U.S. 334.

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Bluebook (online)

152 A. 327, 107 N.J. Eq. 295, 1930 N.J. Ch. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinson-dickinsheets-v-specialty-homes-njch-1930.

Opinion

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