52 Kan. 795 | Kan. | 1894
The opinion of the court was delivered by
This was an action by the Chicago Lumber Company to recover $254 for building material furnished to L. C. Faulkner, a contractor, with which to build a house on the premises of Mrs. E. G. Allen, under a contract made with her husband, and to declare the amount of recovery a lien on the premises whereon the house was built. Faulkner entered into a contract with the Allens to build a house in the spring of 1888; and, under the first arrangement, he was to receive as consideration the sum of $225 in money, and an interest in 80 acres of land, of the estimated value of $250. It was claimed, and testimony was offered to show, that subsequently the contract was changed, by which the whole amount was to be paid in cash; but E. G. Allen denied that such a change was made. Faulkner entered upon the work of building the house, and carried it on almost to completion, when it is claimed that Allen, on account of sickness in his family, would not permit him to complete the work. Faulkner had purchased considerable material for the building, and employed laborers to assist him in its erection. Allen paid the contractor and the laborers who assisted him, and also for some material, the total sum of $250, but no part of the lumber bill of the plaintiff was paid. There was no conveyance of the land to Faulkner, nor any transfer of the interest in the same, which was said to have formed a part of the consideration of the contract, nor was any further payment
After the abandonment of the work under the contract, and within the statutory time, the plaintiff filed its claim for a lien. There was some controversy at the trial as to the alteration of the contract with Faulkner, and as to the cause of delay in completing the building, but there was no dispute as to the amount of the plaintiff’s bill, nor that the material sold was purchased for use in the construction of the building. If there was an- abandonment of the work, as the preponderance of the testimony seems to show, plaintiff had a right to treat the building as completed; in which event its claim of lien was filed in time and should be upheld. (Shaw v. Stewart, 43 Kas. 572; Springs Co. v. Lumber Co., 47 id. 672.) While the lien of any subcontractor is in subordination to the contract between the contractor and the owner, each of the subcontractors is entitled to be subrogated pro tanto to the rights of the contractor under that contract. If the agreed consideration for the construction of the building is insufficient in amount to pay all the labor and material expended thereon, then those who obtained legal liens for such labor and material are entitled to be paid pro rata from the common fund. Under the law in existence at the time the contract was made, the owner could not be compelled to pay anything to any person until the end of the time within which liens might be filed, when he could know precisely to whom he was liable and the amount due each claimant.
“If the contract price will pay all the claims, he should pay all. But if it will not pay all, as in this case, then he must pay the various claimants in proportion to the amount due to each respectively.” (Clough v. McDonald, 18 Kas. 114.)
It appears that the owner paid some of the lien holders their claims in full, and also paid a portion of the fund to the contractor. These payments were made at his peril, and will not release the owner .from a pro rata distribution of the fund among all legal claimants. If the contract price was to be paid in cash, no difficulty will.arise in the distribution; and,
The judgment will be reversed, and the cause remanded for another trial.