188 Iowa 378 | Iowa | 1919
There are several disputed questions of fact, among them whether the lumber company delivered the materials, on the premises; whether certain conceded duplications of doors were fraudulent; whether the lumber and materials were sold at the market price, or reasonable value without a
Appellant has assigned errors in regard to these several matters. The facts found by the referee, and confirmed by the trial court, stated as briefly as may be, are that the contract of May 5th was entered into as alleged; that it was partly in writing and partly oral; that the written portion provided, in part, that the buildings were to be constructed according .to plans and verbal agreements and specifications, and the written portion also fixes the time of payment; that, immediately after said contract was made, Arp started to construct the buildings in substantial compliance with the terms of the contract, and completed the foundations, brick walls, roofs, plastering, and casing of the houses on Twenty-third Street, and completed the foundations, brick walls, and roof of the Pearl Street house; and that, under the terms of the written portion of the contract, he was entitled to $11,000 of the contract price; that Schlappi paid Arp certain moneys by check, some of which were according to the terms of the contract; that several of these checks were endorsed over by Arp to the materialmen; that Arp entered into a verbal contract with the lumber company, at about the time alleged, to furnish the lumber and material for the ^construction of the buildings; that there were no definite prices agreed upon between Arp and the lumber company at this time; that Arp had been dealing with the lumber company for some time previous, and there had been a gen
The amount of Hansen’s claim, as found by the referee, is $166.99, with interest, and the amount of the claim of Comoli is $120. These are junior lien holders, and the stipulation in reference thereto has before been referred to. •The evidence sustains the findings of the referee and the trial court. It would serve no useful purpose to set out the evidence of the different witnesses, and conflicting statements. On such findings of fact, the law question is as to whether thereunder the owner had the right to make payments to the principal contractor, in accordance with the terms of his contract, or whether the materialman is entitled to a lien, where the owner has knowledge that the materials were furnished on credit, or has knowledge of such circumstances as' to put him upon inquiry, and where the payments are not made strictly according to the terms of the contract. This we conceive to be the real point of difference between the counsel on either side. Appellant contends that the case comes within the rule of a line of cases such as Stewart & Hayden v. Wright, 52 Iowa 335, and they
On the other hand, appellees rely on a line of cases commencing with Winter & Co. v. Hudson, 54 Iowa 336, where, as here, the statement and notice were given to the owner within the time required by law; payments were not made in strict accordance with the terms of the contract, nor were the buildings completed within the contract time; the defendant had knowledge that the materials had been furnished and used in the construction of the buildings; and it was held that the owner was liable to the subcontractor, though full payment had been made to the principal contractor. The Stewart & Hayden case was referred to, and the distinction pointed out. Appellees cite, also, Gilchrist v. Anderson, 59 Iowa 274. In that case, the facts are, we think, more favorable to appellant than are the facts in the instant case; for that, though the owner knew the contractor had to buy the lumber of someone, he did not know that he bought it from the defendant. In that case, the owner did not know that the contractor bought on credit of anyone until near the expiration of 30 days from the time the last lumber was furnished," when written notice was served. It was held that that case fell more nearly under the rule of Winter v. Hudson, supra, and it was said:
“The test question is as to whether Anderson [the owner] could probably, in the exercise of reasonable diligence,
It was held that he should have pursued the inquiry suggested, and that the subcontractor was entitled to a lien. In the instant case, appellant knew that appellees had the right, under the law, to perfect their lien by complying with the statute, which they did in due time. Without further discussion, we think the instant case comes within the rule of the cases cited by appellees, before referred to, and the following: Fay & Co. v. Orison, 60 Iowa 136; Andrews v. Burdick, 62 Iowa 714; Jones v. Murphy, supra; Othmer Bros. v. Clifton, 69 Iowa 656; Hug v. Hintrager, 80 Iowa 359, 360; Green Bay Lbr. Co. v. Adams, 107 Iowa 072; Page v. Grant, supra; Chicago Lbr. Co. v. Garmer, supra; Wheeler v. White, 164 Iowa 495; Cedar Rapids S. & D. Co. v. Heinbaugh, supra.
The judgment and decree of the district court is affirmed, and the. liens of the subcontractors will be established in accordance with the stipulation. There was a motion filed by appellant to strike the amended abstract, and also a motion to strike appellees’ argument and parts of the reply argument. These motions are overruled. — Affirmed.