138 Ky. 408 | Ky. Ct. App. | 1910
Lead Opinion
Opinion op the Court by
Eeversing.
On June 5, 1907, P. J. Millett entered into a contract witli the Louisville & Nashville Eailroad Company to construct for it six miles of roadbed in Whitley county. T. J. Swift entered into a contract with Millett, by which he was to construct abont two miles of the road. The panic of 1907 came on. Swift had great difficulty in raising money to carry on Ms work,
The first question is as to the lien of the hardware company. Section 2492, Ky. St. provides: “All per sons who perform or furnish labor, material, supplies or learns, for thtfconstruction or improvement of any canal, railroad, turnpike, or other public improvement in this commonwealth by contract, expressed or : implied, with the owner or owners thereof, or by subcontract thereunder, shall have a lien thereon, and upon all of the property and franchise of the owner or owners thereof, for the full contract price of such labor, material, supplies and teams so furnished or performed, which said lien shall be prior and superior to all other liens thereafter created thereon; but any person'undertaking or expecting to perform or furnish labor, material, supplies or teams, in the manner provided in this section may acquire a lien therefor, as herein provided, by filing in the clerk’s office of each county, wherein he shall have so undertaken to perform or furnish labor, material, supplies or teams, a statement in writing stating that he has so undertaken and expects to perform or furnish labor, materia], supplies, or teams, and the price at
To adjudge a lien on the railroad which Millett or his' subcontractor, Swift, had constructed, was to adjudge a lien on his work. To adjudge a lien on his work was to adjudge it against him, for he would have to remove the lien as between him and the railroad company. So the judgment in effect holds him liable beyond the amount due by him to Swift. This under the record cannot be done. He is not liable beyond the amount due Swift, $1,681.24. The purpose of the amendment was to protect the contractor in the case of a subcontract. The circuit court probably credited Millett by the $1,000 note which he had paid to the bank. He had assumed this debt. It had become his debt, and was past due when the attachment issued. The order to Duffield, having been accepted by Millett, operated as a transfer 6f the fund from Swift to Duffield, and a promise on the part of Millett to pay Duffield according to the acceptance. It is entirely immaterial that there had been previous estimates. The order of Swift covered all estimates, and the acceptance by Millett bound him to pay Duffield his debt, if there was that much coming to Swift on a final estimate. The reason that this was done is very clear under the proof. Millett had been paying Swift’s pay roll since May or June. He was at the same time carrying the $1,000 note for Ifim. On July 15th Swift was indebted to Millett $140.80, and, in addition, whatever pay roll he had. While a check appears on July 25th for $1,706.10
The circuit court erred in adjudging Millett to pay to the receiver $1,681.24, with interest, and in also giving a personal judgment against him in favor of the Jellico Grocery Company for its debt and cost. Two judgments were thus entered against him for the same money. Millett did not pay the money in his hands into court. When ordered to pay it to the receiver, he did not obey the order. He has kept and used the money, or has had the use of it. Under the circumstances he should pay interest on it. On
The judgments directing Millett to pay the money to the receiver and in- favor of the Jellico Grocery Company, and the Jellico Hardware Company, and i ejecting the claim of E. E. Duffield, are reversed and cause remanded for a judgment, and further proceedings as above indicated.
Dissenting Opinion
I dissent from so much of the opinion as defeats the lien of the hardware company for material furnished to construct the road. It was not necessary to file notice of its intention to furnish the material to protect itself against secret or pocket liens.