121 Ky. 452 | Ky. Ct. App. | 1905
Opinion by
Reversing.
Ed C. Terrell was putting up a livery stable in Paducah. John McHenry was agent for a paper roofing manufactured by a concern in Chicago, known as “Climax Roofing,” composed of felt, asphalt, and sand. By an arrangement between Terrell and McHenry the stable was covered with this roofing. Terrell declined to pay for the roof, and thereupon
The proof shows that Terrell knew nothing about the roof which was recommended by McHenry. McHenry, being asked if he guaranteed the roof to Terrell, said that he told Terrell that if the roof was put on properly it could not leak. He says he simply-sold the material toTerrell. On the other hand, Terrell swears positively that the contract between him and McHenry was. as set out in his answer, and in this statement he was confirmed by his brother, who took part in the making of the contract. The testimony of the Terrells is sustained by a number of cir
It is insisted that Miller, who did the work, is entitled to a lien as a subcontractor, although McHenry, under whom he worked, is not entitled to recover. We can not concur in this construction of the statute. Miller was employed by McHenry, and, while McHenry says that he employed Miller at the request of Terrell the evidence does not sustain him in this, Miller, having been employed by McHenry, must look to McHenry for his pay. If McHenry was entitled to any lien on the house, Miller would be entitled to the benefit of that lien; but if McHenry has no claim which he can enforce, and never had any, there is nothing for Miller’s right to attach to. If McIIenxy had had a claim he could enforce against Terrell, and Terrell had paid McHenry, leaving Miller unpaid, a different -question would be presented. But where a contractor fails to carry out his contract, and the owner of the property does not get what he contracted for, and in fact gets nothing of any value, so that he is in no way liable to the contractor, and never was liable, the subcontractor must look to the person with whom he contracted for his pay. McHenry was to get nothing for the roof if it leaked within 30 days, nor until it was made to stop leaking. Miller, who was a subcontractor under McHenry, is in no better attitude, so far as Terrell is concerned, than McHenry, with whom he contracted. If Miller has a lien for his work, then the company in Chicago which furnished the íxxaterial might also have a lien, and thus Terrell would be in effect required to pay for the roof, although it was guaranteed to him and was valueless. (Parrish v. Christopher, 3 S. W., 603, 8 Ky. Law Rep., 868.)
Judgment reversed, and cause remanded, with directions to the circuit court to dismiss the petition.