46 Minn. 44 | Minn. | 1891
The questions to be considered in this case arise upon the answer herein which sets up facts upon which the defendant founds a claim for a lien upon the building described therein, and which is demurred to for insufficiency by the plaintiffs. The answer shows that on the 29th day of March, 1888, the plaintiffs purchased the premises in question of one McKinney, who bad erected a seven-story brick and stone building thereon, which purchase was made expressly “subject to all liens and claims for liens thereon;” and that while the building was in process of construction, on the 2d day of December, 1887, McKinney entered into a contract with the defendant, whereby the latter agreed to furnish and put into position in the building a wire inclosure for the elevator which was to be used therein, for the sum of $1,927. The contract or agreement, which is made a part of the answer, is as follows:
“We propose to furnish wire elevator inclosure for new building on Nicollet avenue, as per measurements given the writer this day, all of No. 10 wire, 1½ mesh, inch channel, iron frame, wire continuous on one side, balance from floors to ceilings, painted, bronzed, and put in position in good workman-like manner, brass elevator locks, noiseless rollers, etc., for nineteen hundred and twenty-seven dollars, payable on completion of the work. Trusting to be favored with the order, and assuring you of a good job, we are, yours respectfully, Reliance Wire-Works Co.
“Per F. A. Hall, Pres’t.”
“Accepted 12-2, 1887. James McKinnev, Jr.”
The answer shows -also that in pursuance of this contract, and immediately upon the execution thereof, the defendant undertook the construction, “and proceeded and caused to be constructed, in the manner specified in said contract, the said wire inclosure for said building.” As soon as the defendant had knowledge of the sale and transfer to the plaintiffs, it notified them of the contract, and their
2. This brings us to a consideration of the effect of the sale of the premises to the plaintiffs. It will be remembered that they bought expressly “subject to all liens and claims for liens thereon,” and it sufficiently appears that the building was new, and not fully completed. The answer shows that the wire inclosure in question was completed and ready for delivery “as soon as was necessary in the construction of said building;” and the existence of liens or claims for liens, other than of record, might reasonably be expected, especially where the vendor required the purchasers to take subject to such claims, and the property was by the terms of the contract made the primary fund for the discharge thereof, to secure him from personal liability upon contracts which were wholly for the benefit of the building. As we have seen, the right of the defendant to a lien had already attached, which it was entitled to enforce against the property when it was sold; and we think the plaintiffs were, under the circumstances, put upon inquiry, and were bound to take notice of such claims, and took the property subject thereto, as part of the risk of the purchase. We may concede, without deciding or discussing the matter, that where the work is done away from the premises, and no part of the material has been delivered there, contractors proceed at their peril, as against bona-fide purchasers and mortgagees without notice; but such is not this case. But we think the plaintiffs should, upon the conceded facts, be held to have purchased subject to the defendant’s “claim for a lien” upon the premises, and therefore stand in McKinney’s shoes. It was a claim growing out of a contract made for an improvement of the building, and which had been partly completed by the expenditure of labor and the use
Order reversed.