65 S.W.2d 712 | Ky. Ct. App. | 1933
Reversing.
This is a companion case of Weil v. Buffaloe Co.,
251 Ky. 673 ,65 S.W.2d 2374 , this day decided.
The appellant, Akers Co., was a subcontractor for the installation of certain partitions in the toilets and for furnishing other materials for the building. The court refused to award it a lien because timely notice had not been given. If consideration be given to certain *690 items of labor and material, the lien was perfected in time. The appellee contends that this work was so trivial and incidental that it should not be taken into consideration. It was stipulated that there was a balance of $3,000 due Akers Co. under its contract by Buffaloe Co.
It appears that the company regarded its work as finished on April 20th. At least the employees so reported to the company's officers in Memphis. But the owner had declined to accept the work because the doors were not of the panel type, such as called for by the contract. On May 20th doors of that kind were substituted for the others. After that some work had to be done upon the recesses for the pay looks on these doors, and Akers Co. employed Buffaloe Co. to do this work for it, which was done on June 15. Akers was billed for this work in the sum of $16.17. If the change made on May 20th and this work on June 15th be regarded, then the lien was perfected in time. Otherwise it was not.
In Henry Koehler Co. v. Hines,
Akers Co. should have been adjudged a mechanic's lien as well as a personal judgment against Buffaloe Co. The judgment of $30,077.12 against Weil in favor of Buffaloe Co., as is related in the *691 other opinion, was for the benefit of itself and the subcontractors and materialmen. In the distribution of this sum by Weil, which the judgment contemplated, Akers Co. must be considered as others having liens of equal dignity. If there be any deficit, that company has a lien on the property to secure its payment, but no personal judgment against the owner.
Wherefore the judgment is reversed.