13 Utah 211 | Utah | 1896
It appears, from the evidence in this record, that the defendant, Francis M. Wright, on the 1st day of August, 1892, made a written contract to erect for the plaintiff a public school building for' $46,500, of which $7,026.67 remained unpaid upon its completion. To this remainder the Salt Lake Pressed Brick Company, the Utah Stove and Hardware Company, Bothwell & McConaughy, and
The evidence in the record sufficiently establishes the respective claims of the appellants as against the contractor, Wright, and that the claims of the appellants were for materials and labor furnished in the erection of the schoolhouse- mentioned, and that the claim of Bothwell & .McConaughy was for labor and materials, and for money advanced and paid by them for materials and labor upon the order of Wright. We are now called upon to determine the relative rights of the appellants and Bothwell & McConaughy with respect to the fund in dispute. The appellants insist that they acquired a lien on the fund under an act of the legislature to secure liens to mechanics and others. Laws 1890, p. 24. Section 1 of this act provides: “That whoever shall do work or furnish materials by contract, express or implied, with the owner of land, * * * for the construction * * * of any building * * * upon such land, * * * shall have a lien upon such land, build
This brings us to the question, had the parties a right to a lien upon this house and land devoted to a public use? If such is the law, such corporations might be deprived of the means essential to the purpose of their creation. While the allowance and enforcement of the lien claimed might not deprive the school board of all the means essential to the education of the children of the city, it might result in much, embarrassment to the corporation and to the cause of education. We hold that a mechanic’s lien cannot attach to the house and grounds upon which it is claimed, because they were required for public purposes. Board v. Neidenberger, 78 Ill. 58. The ¡¡>7,020.67 was due from the board of education to the contractor, Wright; but whether the appellants and Both-well and McConaughy, having furnished material and labor unde a contract with Wright, or having advanced money upon his request, to pay for such labor and materials, might be substituted, under the circumstances of this case, to the rights of the contractor, or, in other words, whether in equity the doctrine of subrogation may be apjffied to their claims, and the court might distribute this fund among them pro rata, it is not necessary for us to decide, in view of the effect we are disposed to give to the assignment made by the contractor to Both-wcll & McConaughy, bearing date August 3, 1892. The referee found that, at the time of the execution of the contract to erect the building, the contractor, Wright, executed a bond to the board of education in the sum of $23,250, binding him to perform the building contract, and that Both well & McConaughy were sureties thereon; and further, “that as a consideration for signing said
The appellants' insist that the assignment upon which Bothwell & McConaugby claim their right to the fund in dispute was ineffectual and invalid. The consideration
The referee found that the parties stipulated that the referee’s fees, reporter’s fees, and the clerk’s costs should be paid in the first instánce out of the fund, and recovered as costs by the prevailing party, and stated, as a conclusion of law, that Bothwell & McConaughy, who recovered the fund, and were entitled to recover their costs against the parties who had answered and filed cross complaints setting up their claims to the fund, and who had offered evidence upon the issues on the trial4 and against whom the issues were decided by the court, should pay the costs finally, and the decree was entered accordingly. To that finding, conclusion of law, and decree the appellants excepted, and assigned them as error. The fund — $7,026.67—was not sufficient to pay the claim of Bothwell & McConaughy. They were entitled to the entire fund, and if the costs were paid out of it, they would be decreed to pay the costs, though successful, and the other litigants, though, they were defeated, would mot. Tn other words, though they lost their case, they would, in effect, recover their costs against the parties whom the court decided in favor of. Other errors are assigned upon this record which we are of opinion should also be denied. The judgment of the court below is affirmed.