72 N.J.L. 10 | N.J. | 1905
The opinion of the court was delivered by
The plaintiff, Taylor, furnished labor and materials to one Cramer, the contractor in the construction of a row of buildings for the defendant, Wahl, and this suit is brought under the third section of the Mechanics’ Lien law, which authorizes any person who supplies materials or labor in the construction of a building, after demand for payment made upon the contractor for the money or wages due to him, and refusal thereof by the latter, to give notice in writing to the owner of the building of such refusal, and of the amount due to him and so demanded, and requires the owner thereupon to retain the amount so due and claimed by the materialman or laborer out of the amount owing by the owner on the contract, and to pay the same to such materialman or laborer, on being satisfied of the correctness of said demand, if the same be not paid or settled by the contractor. Pamph. L. 1898, p. 538. The “stop notice” served by the plaintiff upon the defendant under this statutory provision ivas dated August 10th, 1901, and was delivered to the defendant on the same day.
The defence made against the plaintiff’s claim at the trial was that at the time of the service of the “stop notice” upon the defendant the sum of $1,000 therein claimed to be due and owing from Cramer to the plaintiff was not in fact then
In this instruction there was error. A promissory note, given for an antecedent debt, although it does not operate to discharge the debt, in the absence of any agreement that it should have that effect, extends the credit until the note matures. Fry v. Patterson, 20 Vroom 612. In the present case, therefore, the effect of the note, if it was given on account of Cramer’s indebtedness to the plaintiff, was to extend the time for the payment of that indebtedness until the maturity of the note, August 23d, 1901, thirteen days after the “stop notice” was served. No obligation rests upon the owner of a building, under section 3 of the Mechanics’ Lien law, to retain in his hands money of the contractor to meet the demand of a stop notice, unless the sum claimed in such notice is actually due at the time when it is served. Kirtland v. Moore, 13 Stew. Eq. 109. The trial court should have instructed the jury that if they fopnd the note was given on account of Cramer’s indebtedness to the plaintiff, then, even though it was not given and accepted as payment of that indebtedness, still it extended the túne for the pay
The rule to show cause should be made absolute.