181 Iowa 568 | Iowa | 1917
I. The plaintiff, the Garrison Company, and the several defendants and cross-petitioners, filed a number of sworn statements as subcontractors for mechanics’ liens for alleged unpaid labor and material furnished to the principal contractor. These claims aggregate $2,260.15, or $1,165.69 in excess of the amount left in the hands of the owner, appellant, Farmers Mercantile Company. The principal contractor made default. The owner tendered into court the balance in its hands due the contractor, and asked that same be distributed among the several claimants as the court might see fit, praying that the liens be canceled and that it be discharged from further liability. The decree gives judgment to all the claimants, and holds, the owner liable for $2,094.46, with interest. -
The contract price is ................ $5,703.90
Amount used according to settlement to complete building................$ 109.44
Payment June 2, 1912................ 500.00
Payment of July 27th (unchallenged).. 1,000.00
Payment August 3d (unchallenged) .. 1,000.00. 2,609.44
$3,094.46
3-a
3-b
We find that the trial court erred in holding that this payment was not so ratified by the Grain Company as to
Taking into consideration the state of the evidence on when the sill was in fact put in, and that forfeiture for fraud of what was truly earned is sought, we conclude that, upon all the evidence, such fraud is not established.
4-b
If it be material, we find that, though Tyler was guilty of no fraud, the last item claimed for by him was not in fact the last item, and that he must be dealt with as one who did not serve notice within the thirty days. See Wheelock v. Hull, 124 Iowa 752; Jones & Magee Lbr. Co. v. Murphy, 64 Iowa 165; Chicago Lbr. & Coal Co. v. Garmer, 132 Iowa 282; Stewart v. Wright, 52 Iowa 335; Parker v. Scott, 82 Iowa 266, at 271; Iowa Stone Co. v. Crissman, 112 Iowa 122; Page v. Grant, 127 Iowa 249; Green Bay Lbr. Co. v. Thomas, 106 Iowa 154.
It is true that these subcontractors were bound to know that the contract gave such right. Blanding v. Davenport, I. & D. R. Co., 88 Iowa 225. We may assume, for present purposes, that the owner canceled, and was justified by the contract in so doing. It is true that the contract does not require notice to be given of such cancellation. But does that go beyond dispensing with notice to the principal contractor? And does the fact that he need not be notified establish that, if these claimants continued to work without notice or knowledge of the cancellation, they became volunteers, and must be denied recovery on that account? We do not think that results from the right to cancel without notice to the principal contractor. Murphy testifies that the principal contractor told him to do this item of work, and that Murphy did so without knowing the contract had been , canceled. There is no affirmative evidence of this kind for Freeman and Winders. On the other hand, the claim that they were notified of the cancellation is not, as is claimed, established by the evidence of' M. J. Collins. All he says is that, on October 12th, he “sent a notice to Mr. Inman (the principal contractor) containing
This lacks two elements to make Murphy, Winders and Freeman volunteers: the time when it was said, and a statement that, when said, these three were “workmen there.” We cannot hold that the last item charged for by these three was volunteer work, and that on that account they cannot recover therefor*, nor that they gave notice after thirty days from the last item because the last item claimed for was not lienable.
VII. Denman follows Freeman in filing. He gave no notice. As to him, as well as appellees other than the Grain Company, it is insisted that they may have no relief, because they furnished after they knew the contract had been canceled, and that they were bound to know, even if not notified of said cancellation. We have disposed of this point.
VIII. The Shorthill Company filed last. It did not give notice within the thirty days. It was not allowed all it claimed, but, as it has not appealed, we cannot enlarge its allowance. The point of failure to prove nonpayment has been disposed of.
a. Tyler, having priority, will be paid.......... $207.77
b. As to the Grain Company, its act helped to diminish by $2,000 the fund that would else have been available for the appellees other than Tyler. Were it not for that fact, an estoppel with which these others are not affected, it would be entitled to exhaust what remains after satisfying Tyler, or..................... 886.67
c.Because this payment was not according to contract, and the others are not estopped, out of this there should be paid:
Murphy............................$ 18.50
*578 Winders ........................... 14.40
Freeman ........................... 11.92
Denman ........................... 49.50
Shorthill ........................... 135.75 230.07
Leaving to the Grain Company ...... $656.60
Of the costs here and below, appellant will pay one third and appellee Grain Company two thirds. — Modified and affirmed.