The finding which we regard as decisive of this appeal is this: "That in and by said lien statement plaintiff knowingly demanded $400 more than was justly due it for the building material and supplies at the time said lien statement was filed and recorded." The last sentence in 2 Mason Minn. St. 1927, § 8558, applicable to mechanics' and certain other statutory liens, reads:
"And in no case shall a lien exist for a greater amount than the sum claimed in the lien statement, nor for any amount whatever, if it be made to appear that the claimant has knowingly demanded in such statement more than is justly due."
The last clause of the sentence is clear and specific, that if a lien claimant has knowingly demanded more in the lien statement filed than is justly due the right to enforce the lien is gone. This court so held where the excess claimed in the lien filed was 20 per cent more than was justly due. Lyons v. Westerdahl, 128 Minn. 288, 150 N.W. 1083; Home Supply Co. Inc. v. Ostrom, 164 Minn. 99, 204 N.W. 647. Where by mistake the lien statement filed claims more than justly due, the right of lien is not destroyed. Hydraulic Press Brick Co. v. Mortgage Land Inv. Co.144 Minn. 24, 173 N.W. 849, 176 N.W. 202; or where the lien claimant's agent, to hide his own defalcation, has claimed more than justly due. Rudd Lbr. Co. v. Anderson, 161 Minn. 353,201 N.W. 548. No claim was made at the trial that the answer did not sufficiently raise the issue that plaintiff's filed lien statement knowingly claimed more than justly due; and that issue was really the only one tried. Respondents paid by two checks. The first one was for $800, and the second for $400, received by plaintiff after the lien was filed. Each check was payable to the order of plaintiff and Edwin Wolla. It appears that when the first was issued plaintiff had delivered $1,100 worth of material. There is nothing to show that under respondents' contract with Wolla the latter was entitled to any payment before the barn was finished; but evidently plaintiff, knowing that Wolla was financially shaky, pressed for payment. To protect themselves, no doubt, the checks were made payable to the order of both. The first check was taken by Wolla to plaintiff, endorsed by Wolla, plaintiff entered it as a credit of $800 on its account of the materials delivered on respondents' farm, wrote below Wolla's endorsement, "Pay to the order of The First State Bank of Benson, Benson, Minnesota," and signed its endorsement. Plaintiff at the same time gave a check to Wolla for $400 and charged it to this lumber bill account. The contention is that, respondents' check being payable to Wolla and plaintiff, each became the owner of half thereof under the negotiable instruments law, and therefore the court's finding above quoted is not sustained by the evidence. It seems to us that the court's finding is sustained when consideration is given to the situation of the parties concerned. Plaintiff knew of Wolla's financial condition; it knew he had agreed to build the barn for respondents for $1,600; it knew before this check was made that respondents would pay by check payable to the order of both Wolla and plaintiff. The purpose
was plain to a dealer in material. When this check came into its hands it had delivered more material than the check would pay for. Respondents had not agreed to pay plaintiff for the lumber. Their agreement was with Wolla. Plaintiff knew that Wolla could only get for his work about $400 out of the barn contract and that it had already furnished more than $1,100 worth of material for the job, no part of which had been paid. Nevertheless, plaintiff splits this check with Wolla, then files a lien statement claiming $400 more than justly due from the owners of the land. We think the findings should not be disturbed.
The order is affirmed.