32 Kan. 234 | Kan. | 1884
The opinion of the court was delivered by
This was an action brought in the district court of Harper county by J. B. Bullard, as sub-contractor, against William L. Davis, the owner, and David D. Williams, the contractor, on an account for building materials furnished by Bullard to the contractor, and to foreclose a lien for such materials, upon lot 11, block 35, on Jennings avenue, in the city of Anthony, in Plarper county. The materials were furnished by Bullard to Williams, the contractor, during the months of February and March, 1880, and the last item thereof was furnished on March 20, 1880. The statement of the account, with the notice of intention to file a statement for a lien, was filed by Bullard, as sub-contractor, with the clerk of the district court, on May 3,1880; and the final statement for a lien, verified by affidavit, was filed on May 24, 1880. The building was completed about the middle of June, 1880,
The defendant Davis, as plaintiff in error, claims that there are substantially three questions to be determined in this case: (1) He claims that the petition of the plaintiff below does not state facts sufficient to constitute a cause of action; (2) that the lien sought to be foreclosed by the plaintiff was filed before the completion of the building, and therefore that it was prematurely filed; (3) that the action brought to foreclose such lien was not brought within the statutory limit of one year from and after the completion of the building.
The grounds upon which the plaintiff in error claims that the petition of the plaintiff below, defendant in error, was and is defective, are as follows: (1) It -fails to state the time of the completion of the building; (2) it fails to state the giving of the notice of the filing of the statement for a lien; (3) it fails to state that his action was brought within the statutory time, or within one year from and after the completion of the building.
Now neither the petition nor the evidence makes out a
It is our view, however, that as between the owner of the property and the contractor and sub-contractor, the contractor and the sub-contractor should be considered as substantially one
Besides, one sub-contractor ought not to be able to reach this fund and appropriate it to the extent of his claim before another sub-contractor can reach it; for if the fund should not be sufficient to pay the claims of all the sub-contractors? then each sub-contractor should be paid only a proportionate share thereof. .Now the amount of all the claims of all subcontractors eta be ascertained only after all the work and materials have been furnished, and after the building has been completed so far as the contractor is required to complete the same; for the whole of the work may in fact be done by subcontractor's only, or the last item of work performed or materials furnished may be performed or furnished by a subcontractor. The building in such a case would be completed by a sub-contractor; and the sub-contractor completing the building or furnishing the last item of work or material therefor is entitled to his proportionate share of the general fund equally with the sub-contractor, who furnished the first
The judgment of the court below will be reversed, and the cause remanded for a new trial.