169 Iowa 438 | Iowa | 1915
“Par. 2. That on January 11th, 1911, the defendant Hamilton County, and the defendants The Board of Supervisors of said county for and in behalf of the drainage district aforesaid, entered into a written contract, dated February 23rd, 1911, with the defendants Parks & Gerber for the construction in said Holland Drainage District No. 102 of a certain drain composed of tile and pipe, at the agreed price of $2,382, payable upon estimates of work done under said contract as furnished from time to time by the engineer in charge of said work.
“Par. 3. That on February 9th, 1911, this plaintiff entered into á verbal contract with the defendants Parks & Gerber to furnish said firm tile and pipe to be used in the construction of the drain in the district aforesaid, under the contract referred to, and on March 23rd, 1911, and from time to time thereafter until September 14th, 1911, and including the latter date, the plaintiff furnished tile and ‘pipe under said contract with said Parks & Gerber, which was used by them in the construction of said drain as aforesaid, of the value of $1,234.97, no part of which has been paid except the sum of $106.50, leaving still due plaintiff the sum of $1,128.47, with interest at 6 per cent per annum from September 14th, 1911, an. itemized statement of said- pipe and tile being hereto attached marked Exhibit ‘A’ and made a part hereof.
“Par. 4. That on September 19th, 1911, plaintiff filed with the defendant A. J. Peterson, the County Auditor of the*440 defendant Hamilton County, Iowa, its itemized sworn statement of its demand and claim for said tile and pipe so furnished as aforesaid.
“Par. 5. That on September 12th, 1911, said contract was assigned to the defendant W. H. Minard.
“Par. 6. That the drain provided for by the contract aforesaid between said Holland Drainage District No. 102 and the defendants Parks & Gerber has been completed and said contract performed, and only $832.46 was paid to said Parks & Gerber prior to the filing of plaintiff’s claim, said payment being made August 26th, 1911.”
A copy of the contract and of the claim filed with the county auditor are also set out. An amendment to the petition contained the following allegations:
“Par. 2. That the improvement provided for by-the contract aforesaid has been completed to the satisfaction of the engineer in charge, and has been accepted by the defendant Board of Supervisors.”
It will' be seen from the foregoing that the cause ox action is predicated wholly upon Sec. 3102, above referred to, which is as follows:
“Every mechanic, laborer, or other person who, as a subcontractor, shall perform labor upon or furnish materials for the construction of any public building, bridge or other improvement not belonging to the state, shall have a claim against the public corporation constructing such building, bridge or improvement for the value of such services and material, not in excess of the contract price to be paid for such building, bridge or improvement, nor shall such corporation be required to pay any such claim before or in any different manner from that provided in the principal contract. Such claim shall be made by filing with the public officer through whom the payment is to be made an itemized sworn*441 statement of the demand, within thirty days after the performance of the last labor or the furnishing of the last of the material, and such claims shall have priority in the order in which they are filed.”
In support of the ruling on demurrer, the appellees challenge the sufficiency of the statement of account filed by the plaintiff as the basis of its claim and the sufficiency of the filing of the same as not having been filed with the proper officer. In our judgment, these objections are without merit. In view of our conclusion on the larger merits of the case, we need not discuss these preliminary objections.
The larger question is whether the section above quoted has any application to the ease before us. ' It may be conceded that a slight change in the terminology of the statute could have rendered it applicable. It may be noted also that a statute similar in its effect was enacted by the Thirty-fifth General Assembly, being Chapter 155 and now appearing as 1989-a57, Code Supplement, 1913.
The rights of the parties herein must be determined, however, under the statute herein quoted. The remedy therein provided creates for a subcontractor a qualified “claim against the public corporation constructing such . . . improvement for the value of such services and materials.” This is the precise form and extent of the remedy provided. We need take no account at this point of the limitations set upon such remedy. The only public corporation which is a party defendant in this case is Hamilton County. Though paragraph two of the petition avers that Hamilton County entered into the contract with the principal contractor, it appears from the written contract itself, which is set out as an exhibit, that Hamilton County was not a party to the contract at all, nor did the contract so purport. The contract was entered into on behalf of the drainage district and its beneficiaries by the chairman of the board of supervisors and the county auditor, in obedience to the provisions of the statute in such cases. It is not claimed in argument that the county was a party
The plaintiff urges, however, that we have heretofore applied this statute to such a claim in the case of Humboldt County v. Ward Bros., 163 Iowa 510. Examination of that case will disclose that this question was not passed on therein. The ease was such that the question could have been raised by the appellant therein, but it was not. The only question raised by the appellant in that ease was that the claims were filed after thirty days and were, therefore, filed too late. Neither the county nor the public officers representing the interests of the drainage district were resisting such claims in that case. Only the principal contractor and his surety resisted the same. ¥e held that “independent of the statute” the claimants were entitled to the funds as against the contractor.' The value of their labor and material had entered into the previous estimates upon which the contractor had drawn 80% of the amount of his contract. The claimants asked that they be adjudged to have a claim against the remaining 20%. We held them equitably entitled to such relief, regardless of the statute, and that the rights of the surety were no greater at this point than those of the contractor whose performance it insured.