Mivelaz v. Genovely

121 Ky. 235 | Ky. Ct. App. | 1905

Opinion by

Judge Nunn

Affirming.

This appeal is from a judgment of the Jefferson Circuit Court enforcing a mechanic’s lien in favor of the appellee for $118.50 for work performed for appellant under a contract made by her with one R. A. Barnes, a contractor, who employed appellee. Appellee alleged that the labor he performed was completed on the 9th of April, 1903. According to this allegation, the appellee filed the lien as provided by secs. 2463 and 2468, Ky. Stats. 1903. In her answer appellant denied that appellee was employed or performed the labor, and alleged that she contracted with one Barnes to complete her house, and that she had no knowledge' of the appellee performing" any labor on the building, and, without any notice to that effect, she, on the 23d of April, 1903, made a final and complete settlement with Barnes, paying-him in full. She further alleged that she was assured by Barnes that all bills were paid and no lien could be filed against her property. She further alleged that Barnes made a settlement with appellee before he collected the balance due from her, and that appellee agreed that Barnes might collect the balance from her and that he would waive his lien against her property. In other words, she claimed that there was a contract between appellee and Barnes by which, appellee authorized Barnes to collect the balance of the money from her, and that he agreed to take a note of Barnes in settlement of his claim and to waive his claim to look to her property to pay his debt. All of these allegations were expressly denied by the reply.

The proof shows, without contradiction, that appellee was the subcontractor under Barnes, and that he painted appellant’s building at the price stated, and that after appellee completed the job, and before the 23d of April, 1903, the date when appellant paid to Barnes the balance of the contract price, Barnes and the appellee met, and appellee asked Barnes to execute to him two notes, one for $75 and the other for $100, which Barnes did. Appellee desired these two notes for the purpose of paying two of his creditors, whom he owed these two amounts. His creditors discounted these two notes in bank, and when they became due appellee was compelled to take them up; Barnes never having paid them. Barnes and the appellee agreed that there was no settlement of their accounts between them at that time. Barnes testified that the amount of these two notes was more-than he owed appellee. Appellee testified that it was less by some $125. It is true that appellee knew that Barnes intended to collect the balance of the contract price for the erection of the building from appellant; but there was not any proof that appelleesaid or did anything at that or at any time showing that he waived or surrendered his lien.on the property. Soon after Barnes executed these notes toappellee he became insolvent. At the time appellant paid Barnes the balance due him on the contract, she took a receipt from him, in which it was stated that all bills and claims for labor on the building were paid, and that there was no liens on the prop-. erty. Appellant did not allege or prove that appellee knew that Barnes gave such receipt, nor. that Barnes was authorized hy appellee to give it, and the proof shows that appellee was not aware of this receipt or any representations made by Barnes to appellee. Nor is it shown by the proof that appellant was induced to pay the balance of the contract price to Barnes by reason of any -acts or representations of the appellee. We are of the opinion that her plea of estoppel was not sustained by the proof.

But it is contended that Barnes told her the truth When he stated that he had paid the appellee. This court has frequently decided that the mere taking of a note from a debtor did not pay the debt. It was only a new evidence of it. And the taking of a note of the builder by the subcontractor for a debt Which is a lien, or the negotiation of a note at bank, Will not impair the lien, where payee is compelled to take up the note. (Graham v. Holt, 4 B. Mon., 61; Laviolette v. Redding, Id., 81; Gere v. Cushing, 5 Bush, 304; Waddy Blue Grass Creamery Co. v. Manufacturing Co., 103 Ky., 579, 20 Ky. Law Rep., 259, 45 S. W., 895.)

There was conflict in the proof as to whether or Pot appellee filed his lien in the time prescribed by the statutes. We are of the opinion, however, that the preponderance of the evidence favored the contention of the appellee.

For these reasons the judgment of the lower court is affirmed.