136 Ky. 773 | Ky. Ct. App. | 1910
Opinion op the Court by
— Affirming.
F. N. Barnes & Co., contractors, agreed in writing with A. G-. Sweeney on March -22, 1904, to furnish
Assuming that the extra ‘work increased the contract price by $500 as found by the circuit court (and we are not inclined to disturb that finding on this record), the facts are that the contract price'was $4,500, and the owner has paid $5,125 on account of labor and material, not including- labor and material furnished by the contractors Barnes & Go. The sum owing- appellant for material, $1,117.46, brings the total cost up to $6,242.46. The question for decision is: Must the owner pay appellant’s claim of $1,117.-46 in full under the statute, or is it to be prorated with the other claims paid by the owner for the labor and other material? The judgment of the circuit court from which this appeal is prosecuted was based upon the latter proposition. The statute defining- the condition upon which the liens of materialmen and laborers may arise as against the owner of the property is section 2463, Ky. Stat. (Carroll’s). The lien is given to those who perform labor or furnish material for the improvement by erecting structures or machinery upon real estate of another by contract with or by the written consent of the owner, contractor, subcontractor, architect, or authorized agent. The statute contemplates that the owner who contracts for such improvement of his property includes in his contract every person who furnishes any part of the material, or does any part of the labor, whether named or not, and without reference to the actual
In Hodges v. Arvidson, 66 S. W. 601, 23 Ky. Law Rep. 2078, the contractor had been paid in full by the owner in ignorance of the fact'that the former had bought some of the material from another to be used in the building- and had not paid for it. We held that the owner was liable notwithstanding; the materialman having filed his lien as provided by statute. Thus the principle was applied that the first contractor’s claim against the contract price was postponed until after that of the materialman who had sold him the lumber. In Browinski v. Pickett, 113 Ky. 420, 68 S. W. 408, 24 Ky. Law Rep. 305, the contract to complete the building whs let to Pickett for $15,196.50. Pickett was paid each month 80 percent. of the estimate of the architect of the value of the work done in that month. He abandoned the contract before completing it, after having been paid $12,632.20. The owner finished the house at the cost of $1,688.34, leaving in his hands $874.41 of the contract price. Materialmen who had furnished material to Pickett for the erection of the building- had outstanding claims amounting to $2,992.24. Browinski’s claim was $856.53, for paints, etc., used on the building. The owner offered to prorate the balance of $874.41 in his hands among all the unpaid materialmen, whose claims aggregated $2,992.24, as was stated. This court held that the whole of Browinski’s claim was a lien on the house. It does not appear what part, if any, of the $12,632.20 paid Pickett was applied in the discharge of liens of equal dignity with Browinsld’s. In the absence of such showing, the conclusion was consistent with the views herein expressed, as it must have been assumed that some,
Appellant complains that it was not allowed interest on its account from the time it was due, as by the contract between it and Barnes & Co. it was to be paid interest. Whether appellant should be allowed interest against Barnes & Co. is not the question. That case is not here. But it is whether Sweeney should pay interest to appellant. The statute gives a lien on the owner’s property for “the amount” of labor or material furnished by the contractor, subcontractor, or laborer. Ordinarily the contract price between the contractor and subcontractor, or the laborer, would be taken as the measure óf the value of his material or labor. If the contractor agreed to pay interest after a fixed date, that might also be considered. But there is no ex: press provision for interest. If it attaches, it is as an incident of the contract, and upon the same principle that it attaches upon other demands. The owner should have paid the materialman when the owner was obliged to pay the original contractor. At least
1. There was not a written contract concerning the extra work done on the houses. Barnes, one of the contractors, testified for the plaintiff against the estate of decedent Sweeney as to the extra work and its value. This is assigned by appellee as error, as in contravention of section 606, Civ. Code Prac., which forbids one’s testifying in his own behalf as to any transaction with one who is dead when the evidence is given. But an exception to that provision is that, if the transaction concerning which the testimony is offered affects one who is living and who was present at it, the testimony is competent as against such person. Appellee Forest Lee Sweeney was present at the transaction testified to by Barnes. She is living, and is affected by the testimony, as she is one of the devisees under A. Gr. Sweeney’s will, and as such took the title to part of these lots. The extent to which the interest of the infant defendants are affected is too small to justify a reversal as to them.
2. It is asserted by appellee that the petition in this ease does not charge that the material was sold to Barnes & Co. by- appellant for the purpose of being used in the construction of the buildings. But we think it does sufficiently. The evidence clearly shows that it was so held and used. Even if the petition were not sufficient, the evidence and judgment cure the defect.
Judgment affirmed on the original and cross-appeal.