88 Iowa 329 | Iowa | 1893
The plaintiff’s further claim is that said statements and representations were such that the defendants should be estopped thereby from denying his right to a lien. It is a sufficient answer to these claims that the plaintiff did not regard what was said as constituting either an agreement or an estoppel. He did not act or rely thereon; he has never attempted to perfect a lien upon the basis of an agreement with the defendants, but filed a lien based upon an agreement with Harrie, as principal contractor. It was after this alleged agreement with William Mahlum that the plaintiff contracted with Harrie, furnished and charged the material to Harrie, and filed his claim for a lien based upon his agreement with Harrie. He is clearly not entitled to a lien as principal contractor, nor are the defendants' estopped from denying his right to a lien.
The claim that there was nothing due to Harrie when the materials were furnished is based upon the following facts: One Kirk, having a stock of merchandise at Vinton, Iowa, agreed with one Clark to exchange the goods as per invoice for a certain farm. The defendants agreed with Clark to convey to him a certain house and lot in Estherville, where they resided, for said stock of merchandise and two hundred dollars in money. On August 5, 1890, the defendants William Mahlum and Elijah Harrie entered into a written agreement, whereby Mahlum sold to Harrie said one thousand, four hundred dollars’ worth of dry goods at invoice price, to be delivered at Estherville, and agreed to pay Harrie' two hundred dollars in cash. In consideration of said goods and cash', Harrie agreed to build for said Mahlum on any lot designated in Esther-ville a dwelling house according to certain specifications,
“Whereas, said first party is to exchange, a house and lot for the aforesaid goods and cash, and said goods are to be delivered and the cash paid as soon as-they come into the possession of the first party, and the deed for the aforesaid lot 4 to be delivered to the first party at the same time the goods' are delivered to the second party; however, it is further understood and agreed that the two hundred dollars cash to be paid by the first party is to be paid to J. Gr. Myerly, to be by him paid on the bill of lumber for said house to be built by the second party; and it is also further understood and agreed, as a part of this contract, and as one of the essentials hereof, that said dry goods are to be offered for sale by said second party at retail and wholesale as soon as the same are delivered to him, at some suitable place, and. as fast as the same are sold, said sales to be for cash, only, the money therefor is to be turned over J. Gr. Myerly, and by him applied on the payment of bills for the aforesaid house, outhouse, cistern, well, etc.,'-and to be applied until all bills thereon are fully paid, and the balance turned over to said second party.”
It appears that one J. S. Fletcher, acted as agent for Clark and Kirk in these transactions, and that at a date which does not appear, but evidently on or after August 5, 1890, an agreement was entered into by Harrie, Mahlum and Fletcher reciting that, whereas Mahlum had that day conveyed his house and lot to Clark in consideration of the two hundred dollars and said goods as per invoice in the hands of Fletcher, the goods to be shipped to Estherville, Harrie agreed to pay the freight, and Mahlum to deposit his deed and. abstract in the bank to be delivered to Fletcher when the goods were delivered at the depot in Estherville, and
IY. There is a conflict in the evidence as to when the last item of material was furnished by the plaintiff. We think, however, that the decided preponderance is in favor of the conclusion that it was on the twenty-ninth day of November, 1890, less than thirty days before the plaintiff’s statement and amended statement for a mechanic’s lien wére filed and notice served.
The plaintiff agreed with Harrie to allow a certain discount on part of the materials furnished in his statement for a lien. The defendants contend that for this reason the statement filed is not a just and true statement of his account as required by statute. Whether plaintiff was -bound to allow any discount we do not determine. It is clear, however, that he was not bound to do so except upon that part of the account upon which cash was paid as agreed. This he did, and his statement of his account was just and true.
Our conclusion is that the decree of the district court dismissing plaintiff’s petition must be reversed-. It does not appear whether any issues were joined by the defendants other than William and Agnes Mahlum, or what judgment was entered as to them. The case will be remanded for decree in conformity with this opinion, and'for such judgments and decrees as may be proper and necessary ais to said other defendants. Reversed,