122 N.W. 865 | N.D. | 1909
This action was tried by the court, and is here ' for tnal de novo. The defendants had'judgment, and plaintiff appeals. It is an action brought to foreclose a mechanic’s lien upon lots 17 and 18, in block 3 of Chess & Lloyd’s addition to the city of Fessenden, Wells county, N. D. The evidence is conflicting as to some facts, but, as we regard it, these conflicts are of no importance. Our decision must be based solely upon questions of law.
As far as material to our decision, the facts appear as follows: Title to the lots described stood in defendant Mark Hunt. He had deeded the same to his mother, the defendant Henrietta C. Hunt, but the deed had never been recorded. Henrietta C. Hunt entered into a contract with one Weseman for the erection of a dwelling house on the lots mentioned for the sum of $2,027. Weseman was to furnish all the material and labor necessary to complete the construction of such dwelling. Between the 4th day of June and the 15th day of November, 1906, the contractor purchased lumber and building material from appellant, the plaintiff herein, amounting in the aggregate to the sum of $1,147.60. Some articles were returned, reducing the amount to $1,092.65, and since this action has been brought other articles have been returned which appellant concedes may be credited, reducing the total debt to $1,084.70, no part of which has ever been paid.. No question is made as to all of such lumber and material being used in the erection of the dwelling house and a considerable portion, of it was used by respondents in completing it. The testimony is in con
This court has already held that the mechanic’s lien law, under which this lien is claimed, must be classified as belonging to the Pennsylvania system, as distinguished from the New York system, and that the subcontractor is entitled to a lien irrespective of the state of accounts between the owner and the contractor, or the amount due or unpaid upon their contract. Robertson Lumber Co. v. Bank, 14 N. D. 511, 105 N. W. 719. In the same case it was held that the owner must keep advised whether the material used in his building is paid for or not, and, if he pays the contractor during the ninety days after the material furnished, he does so at his peril. Section 6237, Rev. Codes 1905, reads as follows: “Any person who shall perform any labor upon or furnish any materials, machinery, or fixtures for the construction or repair of any work of internal improvement or for the erection, alteration or repair of any buildings or other structures upon land, or in
It follows from what we have said that the notices by registered letter were sent to the respondents seasonably, and that their property must sustain the burden of the lien in question. All other questions hang upon the one as to whether the contract was completed by the abandonment. Hence they need not be noticed.
The judgment of the district court is reversed, and it is directed to enter judgment of foreclosure in accordance with this opinion.