91 Iowa 704 | Iowa | 1894
In May or June of the year 1890, the plaintiff and the defendant Ered Hunnell entered into an agreement, afterward reduced to writing, by which Hunnell agreed to furnish the materials for, and to construct and complete for the plaintiff, a dwelling house and stable on lot number 1 in Oak Park, for three thousand three hundred and seventy-five dollars. Hunnell was to accept in payment lots numbered 344 and 355, and the south half of lot 345, situated in Mann's second addition to Lake Park, for the sum of one thousand eight hundred and seventy-five dollars. Of the remainder of the contract price, three hundred dollars were to be paid when the foundation should be completed, at least six hundred dollars more when the building should be inclosed and ready for the plastering, and the remainder when the building should be finished. Hunnell entered upon the performance of his contract, but abandoned it before it was completed, and the buildings were then finished by the plaintiff. The appellant, Queal & Co., furnished for the buildings, before Hunnell abandoned them, materials of the value of seven hundred and forty-five dollars and eighty-six cents, and to the plaintiff; after the abandonment, other materials of the value of eighty-three dollars and twenty-six cents. The last item furnished to Hunnell was so furnished on the eleventh day of November, 1890, and the last item in the account against the plaintiff was furnished on the nineteenth day of the next month. Other subcontractors are made parties defendant, some of whom were found by the district court to be entitled to mechanics’ liens as follows: Des Moines Marble & Mantel Company, for the sum of one hundred and thirteen dollars and forty-five cents; H. A. Eaton, for the sum of two hundred and eight dollars and fifty-six cents; Boyd & Grigsby, for the sum of three hundred and seventeen dollars and twenty-five cents. The court also found that appellant was entitled to a first lien for eighty-six dollars, and that the other subcontractors named were entitled to their liens in the order stated, and to interest and costs. The court found that plaintiff had paid to Hunnell seven hundred and eight dollars in money, and had conveyed to him lot 355; that the house was completed by her at an expense of five hundred and six dollars and thirty-three cents; and that there was due from her, on her contract with him, the sum of two hundred and eighty-five dollars and sixty-seven cents, and a conveyance of lot 344 and the south half of lot 345. The plaintiff was directed to pay into court the amount so found to be du'e, to be applied in payment of claims as provided in the decree. Provision was also made for the sale of the lot and half lot, and they were sold for four
I. The first claim made by the appellant is that the plaintiff is personally responsible to it, as an original contractor, for the entire amount of its bill. It appears that, in order to procure the money required to meet her contract with Hunnell, the plaintiff obtained of the Lewis Investment Company a loan on the lot upon which the buildings were to be erected. Before the investment company would pay out the money loaned, it required persons who were furnishing labor or material, for which liens could be claimed, to sign an agreement to the effect that their claims should be junior and inferior to the lien of the mortgage. The appellant signed such an agreement, conditioned on the payment to it of seven hundred and fifty dollars. The claim of the absolute liability of plaintiff is based upon some things she is alleged to have said when the agreement was obtained, and at other times, in regard to the payment of the claim of appellant. It is said that she stated the money had been provided for, and could be obtained of the investment company; that the appellant need not worry; that it would get the money; that she must have the house completed, and would pay for everything that went into it, — and that she made other statements of a similar nature. Shei denies that she agreed to pay for any material, excepting for that furnished on her order, and we think the appellant has failed to show any agreement on her part to pay for what was furnished to Hunnell. "What she said was designed to show that money had been arranged for, which could be obtained of the investment company in payment of claims made on account of the building of the house. That was true, and the appellant should not have been misled nor deceived by anything she stated. She did not say that any portion of the money had been set apart for the use of appellant.
II. No part of the seven hundred and fifty dollars contemplated in the agreement of appellant to make its lien subject to the mortgage has been paid. On the twentieth day of December, or more than thirty days after the last material was furnished to Hunnell, but within thirty days of the furnishing of the last material to plaintiff, the appellant filed its statement for a mechanic’s lien, as provided by law, including in it the account for materials furnished to Hunnell, and also to plaintiff. The appellant contends that, as the plaintiff undertook to complete the contract taken by Hunnell, she should be treated as standing in the place of Hunnell, and the account for materials furnished to both treated as con
III. The appellant urges some objection to the allowance made, and the priority given, to some of its eodefendants, and insists that it is entitled to the relief demanded because the failure to give notice was not pleaded to its cross petition. We do not think the claim founded upon the condition of the pleading can be sustained. It is apparently made for the first time in this court and in the argument in reply. Moreover, by a fair construction of all the pleadings, the appellant was required to show affirmatively, in support of its cross petition, that it was entitled to a lien, and it failed to do so. We think the evidence sustains the allowance and relief granted by the district court. We find no ground upon which to disturb the decree and subsequent order of that court, and they are, therefore, affirmed.'