90 Iowa 25 | Iowa | 1894
The mortgage under which plaintiff claims was executed on the eighth day of May, 1890, to secure an indebtedness which amounted to nearly five thousand dollars, and was recorded on the tenth day of the same month. The statement for a mechanic’s lien in favor of the iron works was filed three days later, and alleges that the agreement under which the labor and materials for which a lien is claimed were furnished was made on the eighth day of July, 1889, and that the last of the materials and labor for which a recovery is sought were furnished on the twentieth day of March, 1890. When the mortgage was taken the plaintiff had no actual knowledge that the iron works made any claim for a mechanic’s lien on the property mortgaged. The labor and materials in question were furnished to the G-arver Coal & Mining Company in repairing its machinery at its mines. There was no general agreement which contemplated the precise repairs which were actually made, but when
I. The iron works was a principal contractor, within the meaning of the mechanic’s lien law, and entitled to ninety days from the time of furnishing the last item of the account within which to file its statement for a lien. Acts, Sixteenth General Assembly, chapter 100, section 6. Therefore, if the repairs can be regarded as having been made under a single agreement as a part of the same transaction, the statement of the iron works was filed in time, and its lien is superior to that of the plaintiff’s mortgage. Evans v. Tripp, 35 Iowa, 371; Lamb v. Hanneman, 40 Iowa, 43. It is not necessary that an agreement for labor and material be expressed, but it may be sufficient if implied. Neilson v. Railway Company, 51 Iowa, 185, 1 N. W. Rep. 434. It was not necessary that each item furnished should be specified or contemplated at the time of the making of the agreement (Stockwell v. Carpenter, 27 Iowa, 125);
II. It appears that the only materials charged in the account of the iron works which were furnished within ninety days of the filing of the statement for a lien were three sets of coal wheels and axles of the value of twenty-four dollars. Other articles were furnished a short time before, but we are unable to determine from the record that they were .supplied under the same order. Payments have been made by the coal company which do not appear to have been applied by the parties to any specific part of the account. Therefore, in acco rdance with the well established usage in such cases, we will apply them on the items of the account first
III. It is said that the iron works is not entitled to a lien, for the reason that the statement it filed was not just and correct. That it was filed under an erroneous theory as to the rights of the iron works is true, hut it is not shown to contain any item for which the iron works was not entitled to a lien as against the coal company. There was no intentional wrong in the statement, and no sufficient reason for applying to it the rule announced in Stubbs v. Railway Co., 65 Iowa, 513, 22 N. W. Rep. 654. The decree of the district court is MODIFIED AND AFFIRMED.