33 F. 569 | U.S. Cir. Ct. | 1887
The Chicago Lumber Company, under an alleged contract with the owners of the property, Douglass and Bixbv, furnished them a large amount of lumber and material, to be used in the erection of a ilouriug-mill and residence on the 40 acres of land set out in its cross-bill. The material was delivered between the seventh day of November, 1882, and the thirteenth day of December, 1883. On January 1, 1884, the Chicago Lumber Company took a note from Douglass, due the first day of July following, for the balance due, to-wit, $1,813.37. The note was not paid, and on or about the first day of July, 1881, the lumber company filed its claim for lien upon the property with the clerk of the district court of Mitchell county. In its statement for a lien it avers that the flouring-niill and dwelling-house wore not yet completed, but did not aver that the work bad been suspended or abandoned. The Chicago Lumber Company, by its cross-bill in this suit, (filed April 2, 1886,) for the first time took steps to assert its lien. It charges in its bill that the work is not yet completed, and that Douglass and Bixby have .abandoned the undertaking, but do not aver when they abandoned the undertaking or stopped the work. The Merrimac River Savings Bank, which has a mortgage lien on the property, contests the claim of the Chicago Lumber Company, and asserts that its claim of a lien for material furnished was prematurely filed, inasmuch as it was filed before, and not after, the completion of the buildings; and further, if it had a lien, it was not asserted by suit within a year, and is barred by the statute. To these two allegations the Chicago Lumber Company presents a demurrer, and its counsel takes the broad ground that under
Perhaps, in the present state of the pleadings, nothing more need be said but to overrule the demurrer; but as a small' amendment td the bill or answer may present the question as to the rights of the parties in case of the abandonment of the work, and as that question has been referred to by counsel, it may as well be disposed of now. It seems to me it would be inequitable and unreasonable, and contrary to the spirit of the law, to hold that parties are absolutely barred of all rights to the lien law, where the work is permanently stopped or abandoned without fault of such parties. Such a construction would place material-men and laborers at the mercy of the dishonesty, fickleness, or misfortunes of the owner or contractor. I arn of the opinion that, in case of the abandonment of the enterprise, the case would come fairly within the meaning of the term completion, so far as applicable to the- rights of the parties 'not in fault, to file and assert their liens. This seems to have been the view of the court in Davis v. Bullard, supra. It is apparent that parties intending to assert liens rather than rely upon the personal credit of the debtor, must be vigilant to ascertain when the work is completed