64 Iowa 270 | Iowa | 1884
The petition contains no averment that there was anything due the contractor at the time the plaintiff’s
If this were all that there is of the case, it would seem, very clear that the plaintiff is not entitled to a decree for a lien. But the case is complicated by the fact that, notwithstanding the defendant testified that there was nothing due
We ought, perhaps, to say that, while the plaintiff served written notice of his lien, the payments were made before such service, and the defendant contends that they were made without any knowledge that the plaintiff had furnished brick. But we think that the defendant was chargeable with knowledge, under the rule laid down in Gilchrist v. Anderson, 59 Iowa, 274. The defendant testified that he knew that Cate was getting brick somewhere; that he knew that he did
In view of the deficiency of the petition and the unsatisfactory condition of the evidence, we might have felt j ustified in dismissing the plaintiff’s petition, but for the manner in which the ease was tried below and is presented in this court. "We have endeavored to respect the theory of the parties, as far as we could, hoping that, by doing so, we might approximate most nearly to justice between them.
Modified and affirmed.