Shellabarger v. Thayer

| Kan. | Jul 15, 1875

The opinion of the court was delivered by

Brewer, J.:

The facts in this case are briefly these: On June 28th 1872, the defendants in error contracted with one H. H. Lindsay for the building of a house on a lot belonging to them in the town of Wichita. The contract-price was $1,300 — $800 of which was paid at the execution of the contract, and before the commencement of the work. Lindsay completed his contract. The plaintiffs in error sold Lindsay lumber for the building to the amount of about $900. Having taken, the proper steps to perfect their lien, the question is, whether it extends to the full amount of their bill, or simply to the amount due the contractor. It is not pretended that Lindsay received any money from the defendants after the plaintiffs had commenced furnishing lumber, or indeed after the commencement of the building — the only payment being the $800. The law in force at the time of this building, (the law of 1872, ch. 141, p. 294, § 2,) giving to sub-contractors their lien, requires the filing of the statement Within sixty days after the completion of the building, etc., and then reads:

“And if the contractor does not pay such person or subcontractor for the same, such sub-contractor or person shall have a lien for the amount due for such labor or material, on such lot or lots from the same time, and to the same extent, and in the same manner and to the same extent, as such original contractor: Provided, That the owner shall not be liable to such sub-contractor for any greater amount than he contracted to pay the original contractor; but the risk of all payments made to the original contractor shall be upon the owner until the expiration of the sixty days hereinbefore specified; and no owner shall be liable to an action by the contractor until the expiration of said sixty days,” etc.

Three things are clear from this: First, that the sub-contractor has a lien for his work or material; second, that the limit of such lien is the amount contracted to be paid to the original contractor; and third, that the risk of all payments up to a certain date is upon the owner. Now the money contracted to be paid in this case was $1,300. That then is the limit of the sub-contractor’s lien. Not the amount due at the time of notice, or delivery of material, but the amount contracted to be paid. True, the owners had paid $800 of that amount, but the risk of such paymeñt was upon them. The very purpose of this clause in the statute, was to prevent the cutting off of the liens of sub-contractors by early payments to the contractor. And this is a clause, the exact counterpart of which we have not found in the statutes of any other state. In most, the lien applies only to the amount due at the time of notice. Such also, until 1872, was our own law. Laws of 1871, p. 253, § 2; Gen. Stat., p. 756, § 632.

It must be borne in mind that this is not an attempt to compel payment by the lot-owners before the time fixed by the contract therefor, for though the contract called for note and mortgage for the five hundred dollars, yet the answer admits that amount to be due; nor to compel payment in money, when payment in some other commodity was stipulated for. Payment was contracted for in money; and the only question is, whether by advance payment the lien of the sub-contractor can be cut off. The plain letter of the statute forbids it. We do not think the law obnoxious to the constitutional objections raised against it.

We do not understand that the attorney’s fees can be taxed in a case like this. Stover v. Johnnycake, 9 Kas. 369.

The judgment of the district court will be modified, and the case remanded with instructions to adjudge the entire amount found due the plaintiffs in error (less the attorney’s fees) a lien upon the premises.

All the Justices concurring.