38 Minn. 494 | Minn. | 1888
This was an action to enforce a mechanic’s lien for material and machinery for the construction of a mill, furnished to the owner under one entire contract, partly written and partly oral.
The appellants further contend that the payment of $500, applied generally upon the whole account, destroys the lien. If the payment had been as large or larger than the entire amount of the items for which the plaintiffs were entitled to a lien, there would be some force in this point. It would present a ease similar to that of Driscoll v. Hill, 11 Allen, 154, in which it is said that for aught that appeared the money credited may have been sufficient to pay for all that was lienable. But in the case at bar the amount of the payment was much less. Hence there must still, in any view of the case, be some amount due for which the plaintiffs are entitled to a lien. This disposes of the only question which can be raised by demurrer to the complaint. Whether the payment should be applied wholly on the lienable items, or wholly, or as far as necessary, upon the non-lienable items, or pro■ rata on both, are questions which will arise, if at all, on the trial.
There is nothing in the point that the parties have converted the open account into an account stated. This does not change the nat
Appellants’ other assignments of error do not require special consideration. We think none of them are meritorious.
Order affirmed.