186 Iowa 1344 | Iowa | 1919
The defendants Renfro & Lewis, a firm of building contractors, entered into an agreement with their codefendants, Flora M. Wright and Richard Kinney, for the improvement, alteration, and repair of a two-story brick block, owned by the parties last, named, in the city of Denison, Iowa.
The plaintiff is a dealer in building materials, and claims to have sold and delivered to Renfro & Lewis cer
The defendants Wright and Kinney, separately answering, deny the plaintiff’s claim; deny that plaintiff has or is entitled to any lien against their property for the indebtedness of Renfro & Lewis; and deny that they or either of them are indebted in any sum to said contractors. Further answering, the defendants allege that, by the terms of their contract with Renfro & Lewis, payment was to- be made only upon the furnishing of the material and completion of the work contemplated by the contract, and that, before the contract was performed or its conditions fulfilled, the building collapsed and was ruined, by reason of the negligence of the contractors in constructing another building on the adjoining lot for one Goldheim, whereby said answering defendants never became and are not now indebted to Renfro & Lewis on account of their said work, and their said property never became and is not now subject to plaintiff’s alleged lien.
In reply, plaintiff alleges that the materials furnished by it were used in the building, and that Wright and Kinney had elected to bring their action for damages against Goldheim for the value of their building in its improved condition, and had recovered judgment therefor.
The trial court found for the defendants, dismissed the bill, and plaintiff appeals.
By way of further explanation, it may be said that the judgment in the action by Wright and Kinney against Goldheim was affirmed upon appeal to this court. See Wright v. Goldheim, 184 Iowa 1041.
I. As an introduction to their argument, appellant’s
1. That the fact that no building was on the lot when the claim for a lien was filed does not defeat the right to a lien.
2. That substantial performance of the contract is sufficient to sustain a recovery of the price, subject only to reasonable deduction for slight defects or deficiencies in the work done.
3. That destruction of the building without the contractor’s fault relieves the contractor from further performance, and he is entitled to recover for the work done and materials furnished.
4. That a defense which is not available by the owner against the principal contractor will not serve to defeat the lien of a subcontractor.
The language quoted is too clear and unambiguous to call for construction, and renders unnecessary any citation or quotation from the numerous precedents to the same effect.
II. Does the record show any indebtedness by Wright and Kinney to Renfro & Lewis?
That the building did collapse and became a heap of ruins is conceded. As to the condition of the work, under the contract, at the date of destruction of the building, the testimony given by Renfro & Lewis’ is to the effect that there still remained to be done the setting of certain glass, the completion of certain steps, and some unfinished painting. Their statement is:
“The lights had not arrived at that time, and we were waiting for them. They were to be put in place when they came. It would require about two hours to put them in place. There had been but one coat of paint put on at that time. There were three steps that the risers were not in; otherwise, the building had been fully completed for three or four days.”
No notice had been given to the owners of the com
In short, though the work had been, to a great extent, performed, there was and is no claim or pretense that it was, in fact, completed or ready for delivery. Had the contractors, a moment before the collapse, demanded payment of the contract price, the owners would have been under no obligation or duty to accept the building as a finished work, or to pay the contract price. The contractors were still rightfully in possession, and if, by their neglect, the building- was destroyed, surely the owners were under no obligation, legal or moral, to pay for it. As between the owners and the contractors, the fact that the fall of the building was occasioned by the neglect of the latter was adjudicated in the ease of Wright v. Goldheim, supra; and while that question may not be res adjudicate as against the plaintiff in this case, the burden is, nevertheless, upon it to show, if it can, a state of facts from which the court may find that the appellees are indebted to said contractors for the work in which the materials sold by them were used. In this respect, there is not only a failure of proof, but it affirmatively and convincingly appears that such indebtedness does not exist.
The contractors are denied the right to recover, not because of their negligence, but because they have not performed their agreement. Had they abandoned the building in its unfinished condition, or had tendered or turned it over to the appellees in such condition, then the question of substantial performance, or whether they could recover the agreed price, less the cost of the items of work undone, or whether they could recover under some application of the doctrine of quantum meruit, would be of pertinence; but it has none under the record as it stands.
The decree of the district court is right, and it is — Affirmed.