132 Iowa 282 | Iowa | 1906
As bearing .on Mrs. Bastian’s knowledge the evidence is in sharp conflict. The manager of plaintiff testified to two conversations with her at his office. She denied having had one, and claimed that the other was subsequent to the
In case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified*286 by tbe architects, whose certificate thereof shall be conclusive upon the parties.
The rule prevails that the subcontractor must enforce fore a lien will be enforced against the owner, to show that he cannot insist upon payments by the owner different in manner or in greater amounts than those stipulated in the contract, save as this rule may be modified by knowledge that the ■ subcontractor is furnishing material and lumber on credit. Stewart v. Wright, 52 Iowa, 335; Martin v. Morgan, 64 Iowa, 270; Epeneter v. Montgomery County, 98 Iowa, 159. The burden is upon the subcontractor, before a lien will be enforced against the owner, to show that there was such an' indebtedness on the part of the owner to the contractor either at the time the subcontractor’s accounts commenced or later as will justify the court in decreeing a lien. Parker v. Scott, 82 Iowa, 266; Martin v. Morgan, 64 Iowa, 270. As the contract had been forfeited, the contractor, under the express conditions of the agreement, was not entitled to receive any further payment until the work was finished. The owner’s indebtedness to the contractor could only be established by showing the completion of the work, and that the unpaid balance of the amount stipulated to be paid exceeded the expense incurred by the owner in completing the building. It is evident, then, that if the certificate of the architect, auditing the expense of completing the building, was essential, a point not decided, the burden was on the plaintiff to introduce it. See American Bonding Company v. Gibson County, 127 Fed. 671 (62 C. C. A. 397); International Cement Co. v. Beifield, 173 Ill. 179 (50 N. E. 716). It should be added, however, that the defendant introduced evidence showing that the reasonable expense of completing the house substantially equaled the. unpaid balance of the contract, and therefore that nothing was due from the owner on this account.
IV. Compensation for extras is said to be due the contractor. Of these, moving a partition, enlarging the rear porch, and increasing the height of.the wall were clearly alterations, and with reference 'thereto the contract provides that ‘-no alterations shall be made in the work except upon 'written order of the architects: and the amount to be paid by the owner, or al
In excavating for the walls it was discovered that the earth was soft, being at the location of an old ditch which had been filled, and, as Garmer testified, the architect directed him to deepen the trench and put in a concrete footing. What the material above may have been does not appear. Appellant insists that the cost of digging and of the eon
The court did not err in dismissing the claim for extras, and the decree, denying relief against Mrs. Bastían, is affirmed.