| N.H. | Jun 5, 1880
Neither of the plaintiffs having given notice in writing to the trustees that he should claim a lien for labor to be performed or materials to be furnished, has acquired any lien on the building. G. L., c. 139, s. 15. The lien of the several plaintiffs on the funds in the hands of the trustees is determined by the priority of their respective attachments.
The value of the lumber receipted for by Clough, and fixed in the receipt to the officer at $120, should be reckoned as paid by the trustees, and be deducted from the amount due to Newman, the lumber having been used in the construction of the house. The contract is treated by all parties as the joint contract of Clough and Young; and that was evidently the understanding of the parties, although, as between Clough and Young, each was to pay one half of the contract price to Newman. They are jointly and severally liable to him. It makes no difference that the receipt was signed by Clough alone. It was a liability incurred for the defendant Newman, against which they are entitled to secure themselves by withholding that amount from the funds in their hands, and which they are equitably entitled to set off against the price to be paid to Newman.
They should also be credited with the sum of $94.51, paid in *583 settlement of Parker's claim. Parker had given the statute notice to Clough, and had acquired a valid lien at least upon Clough's undivided interest in the building, which had priority over the claims of Eastman, Flint, and Hall. Each trustee being liable to Newman for the whole price of the building, the trustees, and each of them, were obliged to pay Parker's claim to discharge his lien. No question is made as to the validity or amount of his claim.
If the sum of $75 was paid to Newman before service of the writs upon the trustees, it would be a payment to that extent for which the trustees should be credited. If paid after service upon the trustees, and Newman retained the money instead of paying it over to Parker, the payment cannot avail the trustees as against the plaintiffs. But if paid to Parker, whether paid before or after service on the trustees, the payment having been made to discharge a lien upon the property which had priority over the plaintiffs' lien, the trustees are to be credited with the payment.
The trustees claim that Newman has not completed the building, and therefore is not entitled to receive the full contract price. This claim is in conflict with the reserved case; but if it were not it would be a question to be determined at the trial term. Whether Batchelder and Moore Sons have taken executions against the trustees for sums larger than they were entitled to (as claimed by Eastman), is also to be determined at the trial term.
Eastman also raises the question whether, having attached the building as the property of Newman, he may not hold it as Newman's to the extent that it was not paid for? That question can only be met when the question of ownership is properly before the court. It would seem, however, that if the trustees are charged for the balance due for constructing the building, the question proposed could not arise, the building being fully paid for.
Whether the trustees are chargeable, and if so, for what sum, will be determined at the trial term upon the principles thus laid down.
Case discharged.
FOSTER, J., did not sit: the others concurred.