The opinion of the court was delivered by
The plaintiffs, Stevenson and Clark, brought suit against Meeker & Yausney, as builders, and Taliaferro, as owner, to enforce a lien for a debt owed to them by the builders for materials used by the builders in erecting a house under a contract between the builders and the owner. On the trial in the Essex Circuit it appeared that, after the debt had become due and while the house was,still unfinished, the builders, being indebted to the plaintiffs in the sum of $2,000,
Evidently, the indebtedness from the builders to the plaintiffs is in no way affected by the assignment. According to the terms of the instrument, it merely gave to the plaintiffs collateral security for the payment of the debt, without barring or suspending the right of action upon it.
But the owner insists that the acceptance of the assignment put the plaintiffs in the position of the builders with regard to the contract assigned, and thus bound them to finish the house for the contract price, and save the owner from all building liens outside of that price.
The language of the assignment, however, affords no ground for holding that the obligations of the assignors were transferred to the assignees. It assigns merely the rights of the assignors. Although those rights might not become valuable until certain obligations imposed by the contract were discharged, yet it by no means follows that the parties acquiring the rights were personally charged with the performance of the obligations. Such a charge would arise only when the assignees had agreed to assume the duties of the assignors. In the cases of Jones v. Foster, 67 Wis. 296; Whitney v. Joslin, 108 Mass. 103, and Abbott v. Nash, 35 Minn. 451, upon which the plaintiff in error relies, the assignee had so agreed,' either by the terms of the assignment itself or by subsequent arrangement with 'the owner. But in the absence of such an assumption by the assignee, the duties of the assignor remain incumbent on himself alone, notwithstanding the transfer of his rights. Devlin v. The Mayor, &c., 63 N. Y. 8.
He further contends that the lien which the assignees, on performance of the contract, would have for the purpose of enforcing payment of the moneys accruing under the contract, would be inconsistent with the lien which they now seek to establish, and that, as they cannot be entitled to two inconsistent liens, the present lien must be defeated.
In this argument the superior right is made to give place to the inferior.
The only inconsistency there is between these two liens lies in the fact that the existence of the lien now prosecuted would suspend, and its enforcement would defeat, pro tanto, any lien for moneys earned by the builders under the contract, for the contract requires that, before such moneys be claimed, all other liens shall be extinguished. But no rights accruing to the builders under the contract can impair the plaintiffs’ lien for their materials. So far, therefore, as inconsistency exists, it works detriment only to the lieu which the builders might set up on the contract. There is no reason for holding that it at all affects the present claim.
The judgment of the Circuit Court in favor of the plaintiff was lawful, and is affirmed.
For affirmance—The Chancellor, Chief Justice, Garrison, Gummere, Ludlow, Mague, Van Syokel, Bogert, Brown, Krueger, Sims, Smith. 12.
For reversal—None.