142 F.2d 102 | D.C. Cir. | 1944
This appeal is from a judgment that appellees, who took part as subcontractors in the building of appellants’ house, were entitled to mechanics’ liens. The court found that appellants “with knowledge that the subcontractors, the lienors herein, were not being paid, deviated from the teems [of appellants’ contract with the general contractor, and] made advance payments to * * * the general contractor * * * and assured several of the lienors upon inquiry by them that there was sufficient [money] to pay their claims—this in December 1939 * * When appellants made the payments in question they obtained from the general contractor, and mailed, his checks to several of the subcontractors, and got his assurance that he would pay all his bills. In January and February, 1940, appellants on orders from the general contractor made a number of payments direct to workmen on the job. Notice of lien was first filed by one of appellees on February 29, 1940. At that time only a few dollars remained due from appellants to the. general contractor.
The Code provides that a subcontractor may have a lien upon filing a notice of lien with the clerk of the District Court and serving notice upon the owner of the property,
Before the enactment of the Code provision concerning advance payments this court had held that an advance to a general contractor, though made in good faith and accompanied by an attempt to see that subcontractors were duly paid, did not avoid the unregistered liens of the subcontractors.
Subcontractors have, under the statute, ample opportunity to protect themselves. They may require the owner to disclose the terms of the general contract and the state of the account between himself and the general contractor.
Reversed.
D.C.Code 1940, §§ 38-103, 38-105.
D.C.Code 1940, § 38-104.
D.C.Code 1940, § 38-108.
Riggs Fire Insurance Co. v. Shedd, 16 App.D.C. 150.
James B. Lambie Co. v. Bigelow, 34 App.D.C. 49, 56. The quoted language is followed by a dictum that “If the evidence before us showed that there was no occasion for advance payments, and that they were made with knowledge on the part of the owner that the subcontractors were not being paid, a different case would be presented. In such a case bad faith might be presumed.” In our opinion this dictum was erroneous.
Supra note 5.
D.C.Code 1940, § 38-107.
Cf. Wagner v. Butler, 155 App.Div. 425, 140 N.Y.S. 50; Tommasi v. Bolger, 114 App.Div. 838, 100 N.Y.S. 367.