21 Haw. 736 | Haw. | 1913
OPINION OF THE COURT BY
This is an action of assumpsit upon three promissory notes amounting in tbe aggregate to $1216.60. Judgment was for plaintiff against the principal defendant for the amount claimed and against the garnishee for $622.50. The defendant does not appeal and the only question presented by the exceptions of the garnishee is whether the judgment against her can stand.
The defendant entered into a written contract with the garnishee whereby he agreed to build for her, on land conveyed to her as a part of the -same transaction, a dwelling-house in accordance with certain specifications, to furnish all necessary material and labor and to “suffer no liens of mechanics and material-men to attach to said house or premises.” The garnishee in turn agreed to pay to defendant $877.50 for the land and
From time to time the garnishee paid to defendant the whole amount required of her by the contract excepting the sum of $622.50 which is still unpaid. This action, with its process of garnishment, was commenced on August 10, 1912, on August 24 Allen & Robinson, Limited, claiming $1111.47' for materials furnished by the corporation to the defendant and used in the building, filed a notice of lien on the building and land and two days later an action to enforce the lien was instituted.
On behalf of the garnishee two grounds are urged for setting aside the judgment, first, that the building has not been accepted and that in consequence she is not indebted to the defendant and, second, that the defendant did suffer a lien, that in favor of Allen & Robinson, Limited, to attach to the property and that for this reason she is not indebted to the defendant and
Under our statute (R. L. §2174, as amended by Act. 97, ’L. 1909) a material-man’s lien “shall continue for forty-five days, and no longer, after the completion of the construction * * * of the building” unless proceedings shall have been “commenced to collect the amount due thereon by enforcing the same.” In Lucas v. Hustace, ante 119, 122, we remarked, obit-er, that “perhaps it” (the building) “is to be deemed complete * * * upon abandonment by the contractor when the building is substantially but not entirely completed and the owner takes no steps to complete it.” This is a correct statement of the law, “The owner’s or contractor’s abandonment of the work upon a building is to be deemed a completion of it for the purpose of the filing of mechanic’s liens by subcontractors, material-men and laborers.” 2 Jones, Liens, §1438. “It would be inequitable and unreasonable, and contrary to the spirit of the law, to ' hold that parties are absolutely barred of all rights to the lien law, where the work is permanently stopped or abandoned without fault of such parties. Such a construction would place material-men and laborers at the mercy of the dishonesty, fickleness, or misfortunes of the owner or contractor. I am of the opinion that, in case of the abandonment of the enterprise, the case would come fairly within the meaning of the term completion, so far as applicable to the rights of the parties not in fault, to file and assert their liens.” Catlin v. Douglass, 33 Fed. 569, 570. “It appears that this building never was in fact completed, but it has been held by this court, and is certainly consistent with the spirit of the law, that, where the work is abandoned, parties entitled to a lien shall not be thereby deprived of their rights, nor prevented from enforcing them, but that when the work is abandoned the building shall be deemed completed, for the purpose of protecting their rights.” Chicago Lumber Co. v. Merrimack Bank, 52 Kans. 410, 414, See also Shaw v. Stewart, 43 Kans. 572; and 27 Cyc. 139.
In. holding that the lien of Allen & Robinson “was not filed in the statutory time” the trial court doubtless had in mind the undisputed evidence that the latest work on the building was done before July 4, 1912, more than 45 days prior to the date of the filing of the notice of lien, and found that there had been an abandonment of the work by the defendant. Upon the evidence the findings cannot be disturbed and the law was correctly applied. It is not claimed that the property is liable to any other existing lien.
The mere fact- that the action to enforce the material-man’s alleged lien is still pending and undisposed of cannot operate as a defense in favor of the garnishee in this case. Had the garnishee asked for a continuance to await the result of that case perhaps it should have been granted; but no such request was made and the issue as to the existence or validity of the lien must be determined upon the evidence now before the court.
Upon plaintiff’s filing, as he has offered to do,' £ remittitur in favor of the garnishee as to the sum of $100 required to compensate her for the defects in the performance of defendant’s contract, the exceptions will be overruled.