Iowa Stone Co. v. Crissman

112 Iowa 122 | Iowa | 1900

Siierwin, J.

1 The principal contractor, McGee,was not made a party to this action, nor had plaintiff’s claim against1 him been adjudicated. The petition alleged that the amount due had been agreed to by all parties, and this was not denied. If this undenied allegation were to be held insufficient, no question as to defect of parties was raised in the court below, and consequently cannot be considered here. Coe v. Anderson, 92 Iowa, 515; Bouton v. Orr, 51 Iowa, 473. So an objection that the petition does not state a cause of action cannot be made in this court for the first time. Ross v. Insurance Co., 93 Iowa, 222, and cases cited.

2 The contract with McGee was made by defendant through his agent, George T. Hedges. Immediately upon the completion of the work Hedges gave McGee a statement of the amount due him, properly certified, and this was presented to the defendant, and payment thereof made at once. The evidence conclusively shows that the defendant, neither personally nor by knowledge communicated to Hedges, knew that the plaintiff was furnishing any material for the foundations in question, or that McGee was obtaining credit for the stone used therein. The first information of these facts received by either was after payment in full had been made, in strict accordance with the terms of the contract. No provision was made in the contract relative to the payment of claims or liens. Hpon this record it is manifest that the plaintiff is not entitled to recover.

He was bound to know the terms of the contract betunen McGee and the defendant, whether written or oral. Stewart v. Wright, 52 Iowa, 335; Blanding v. Railroad Co., 88 Iowa, 225. And if the defendant did no more than to comply with tlie terms thereof, in good faith and without knowledge or notice which would require him to make inquiries, equity and good conscience will not require him to make a second payment. Stewart v. Wright, supra; Kitbourne v. Jennings, 38 Iowa, 533; Lumber Co. v. Osborn, 72 Iowa, 472; Andrews v. Burdick, 62 Iowa, 714; Epeneter v. Montgomery County, 98 Iowa, 159. This work was done' in Cedar Rapids, and, as was said in Lumber Co. v. Osborn, “it may be supposed there were several dealers in stone there, and the defendant was not bound by the law, nor authorized by liis contract, to run over the city to find out where the stone in his foundation came from.” The case at bar is unlike the case of Gilchrist v. Anderson, 59 Iowa, 274, in this: There “it was provided in the contract that Anderson preserved the right to discharge mechanics’ liens, if any should be claimed.” Not so here, and this distinction has been recognized in Winter v. Hudson, 54 Iowa, 336; Fay v. Orison, 60 Iowa, 136; Lumber Co. v. Murphy. 64 Iowa, 165. In the Fay-Orison Case the holding is founded also upon the fact that Oard had knowledge that the materials were purchased of the plaintiff. The same facts appear in Lumber Co. v. Woodside, 71 Iowa, 359; Othmer v. Clifton, 69 Iowa, 656; Simonson Bros. Mfg. Co. v. Citizens’ State Bank, 105 Iowa, 264; and in Lumber Co. v. Thomas, 106 Iowa, 154. In Merritt v. Hopkins, 96 Iowa, 652, it is expressly said that the case is not “within the class oí cases holding that the owner may pay the contractor according to the strict terms of the contract.” The judgment is REVERSED. '

Granger, O. J., not sitting.