190 P. 81 | Ariz. | 1920
The plaintiff, Bassett Lumber Company, sought to establish a mechanic’s lien against the property of the defendant Frank Stolaroff, to the amount of $1,326.40, for lumber and other materials sold at that sum to the defendant M. Morris, who, under a contract with Stolaroff, used the lumber and materials in constructing a dwelling-house for Stolaroff on the property against which the lien is sought to be established. Stolaroff pleaded payment in full of the plaintiff’s claim. Notice of the lien was duly filed and served. The case was tried before a jury, and after the close of all of the evidence the judge instructed the jury to return a verdict for the plaintiff in the amount claimed, which was done, and thereupon judgment was rendered in favor of the plaintiff for the said sum of $1,326.40, against the defendant M. Morris, which amount was declared to be a lien on the Stolaroff property, and superior to a mortgage held by the defendant, the Bank of Douglas, on the property. The defendant M. Morris did not appeal. Frank Stolaroff, Lillie Stolaroff and the Bank of Douglas are the only parties appealing.
The action of the trial judge in directing a verdict is the only assignment of error possessing any merit. It is urged that the directed verdict was unauthorized by the evidence.
The undisputed facts show the following case: Morris, as contractor, was employed by Stolaroff to put up a dwelling-house for him on lots 31 and 32, block 22,
It is insisted that under this evidence Bassett Lumber Company, in equity and good conscience, should have placed a sufficient amount of the check to the credit of the account for lumber and materials sold to Morris and used in the Stolaroff building to have satisfied it, and not to have placed the check to the credit of the Itule account. It is insisted that the transaction should be treated equitably as payment of the first-mentioned account. But we do not think there is any evidence in the record tending to support this claim. There was nothing in the transaction to put the Bassett Lumber Company on notice, either
Stolaroff promised to pay the Morris account for lumber and materials used in his building, but it was perfectly reasonable for the Bassett Lumber Company
"We see nothing suspicious, at least nothing sufficient to put the Bassett Lumber Company upon inquiry, in the circumstances that Kerner and Morris were together and both took part in directing the application of the funds represented by the check to the payment of the Itule account. The Bassett Lumber Company might reasonably have.inf erred that Kerner was advancing money to enable Morris to pay the account. The undisputed evidence shows that Kerner had been in the habit of aiding Morris financially in the conduct of his contracting business, and this fact was known to the company. Furthermore, Morris had informed the company that he was going to obtain money from Kerner to pay the Itule account.
If full faith and credit be given to the statement of the defendant’s witnesses that the written instrument which Kerner gave to Stolaroff at the time he obtained the check was, in effect, a guaranty that he (Kerner) would pay the Morris account for lumber and materials used in the Stolaroff building out of the specific check, yet the undisputed fact remains that knowledge of this instrument did not come to the agent of the Bassett Lumber Company until after the Itule account had been paid and discharged on the books of the company, and a receipt given to Morris, and the relation of the Bassett Lumber Company as owner of the check had become fixed and absolute. The notice came too late to affect the equities of the company, and was immaterial. 8 C. J. 507.
In several cases it has been held that the owner of a building cannot object to the application of
In Grace Harbor Lbr. Co. v. Ortman, 190 Mich. 429, 157 N. W. 96, it is held that if the owner wishes to obtain a credit for money paid by him to the contractor who turns over the money to the materialman, it is his duty to see that it is properly applied.
There is no doubt from the testimony that Stolaroff was deceived by Kerner, but the loss must fall upon him, and not upon the Bassett Lumber Company.
The judgment of the lower court is affirmed.
CUNNINGHAM, C. J., and BOSS, J., concur.