148 A. 328 | Conn. | 1930
The defendant Slade owned a piece of land with an unfinished dwelling thereon. He made a verbal contract for the sale of the premises to the defendant Mrs. Gibbud. By the terms of the agreement she was to enter into possession of the land and buildings and complete the house and when it was completed the defendant Slade was to deliver title to her and to receive payment of the purchase price, $17,000. Mrs. Gibbud did enter into possession and made a contract with the defendant Laden to complete the building, the contract containing no provision as to when the agreed price was to be paid. Laden engaged the plaintiff to do the plumbing and heating work and this was finished on November 24th, 1928. He received only a small portion of the amount due him for his work. Laden substantially completed his contract on December 14th, 1928. He received some payments on account from Mrs. Gibbud, but there was still due him more than enough to pay the plaintiff's bill. On that day the defendant Slade conveyed the premises to Mrs. Gibbud, receiving $5,000 in cash and a mortgage for the balance of the purchase price, $12,000. On January 18th, 1929, the plaintiff gave Mrs. Gibbud notice in writing of his intention to claim a mechanic's lien and the next day filed a certificate of lien. Mrs. Gibbud was the president and *394 practically the sole owner of the Wallingford Lumber Company and Laden was largely indebted to it for materials and supplies furnished in building the house for Mrs. Gibbud and for other jobs. She thereupon wrote off the indebtedness of Laden on the books of the company and charged it against herself, and she claims to set off the amount of this indebtedness against her indebtedness to him under the contract. The trial court has, however, found that the change in Laden's indebtedness from one due the company to one due to her was made without his knowledge or consent and gave judgment for the plaintiff.
Of course the assumption of Laden's indebtedness to the company by her and the crediting of its amount against the sum due him on the contract could constitute a discharge of her indebtedness to him only if it was done with his consent, expressed or implied.Collins v. Richmond Stove Co.,
We have held that where a purchaser of land enters into possession of it and builds in accordance with the terms of the contract of sale he has such an equitable interest in the land that a mechanic's lien might attach to the extent of that interest. Hannan v. Handy,
It is true that ordinarily a vendee may subject the land to a mechanic's lien only to the extent of his interest therein and that if a purchase price mortgage is by the terms of sale to be given back, such a mortgage takes precedence over the lien. Weinstein v.Montowese Brick Co.,
There is no error.
In this opinion the other judges concurred.