138 P. 1152 | Utah | 1914
This was an action by a subcontractor to foreclose a mechanic’s lien. The complaint was directed against the original contractor and the owner of the premises, and is in the usual form in such actions. The contractor answered the complaint, but his answer is not material here and will not be further noticed. The owner of the premises, who is the respondent here, also answered the complaint, setting up two
The findings of fact fairly reflect both the pleadings and the evidence, and we shall state the material parts thereof in place of a statement of facts.
The court found that prior to the 1st day of August, 1910, Mary L. Albaugh, hereafter called “respondent,” entered into a contract with her corespondent, E. M. Pinkston, hereafter designated “contractor,” whereby the latter agreed to ■erect and complete a dwelling house for her upon certain premises owned by her for the agreed price of $3015; that on or about the 1st day of August aforesaid said contractor sublet to appellant the mason work required for said dwelling at the agreed price of $850; and that said work was performed between the 1st and the 26th days of August, 1910, as agreed upon by appellant, and he then became entitled to said sum of $850 for said work; that on or about the 2d day of September, 1910, the contractor, in payment for said work, made and delivered his personal check to appellant for said sum of $850, at which time appellant delivered to the contractor a receipt in full, which receipt was made and delivered to enable the latter to obtain the money due him on the contract price from respondent; that said contractor, within a few days thereafter, exhibited said receipt to the respondent, stating to her that he had paid the appellant for the work aforesaid; that, relying upon said receipt and the representations of said contractor, respondent paid him the sum of $900 to apply on the building contract; that, when said contractor delivered his check as aforesaid to appellant, it was agreed between them that the check should not he presented for payment for a few days so as to give the contractor time to obtain the necessary money from respondent and deposit the same in the bank on which the cheek was drawn; that, after said contractor received said sum of $900 as aforesaid, he did not deposit the same in the bank, and
Upon the foregoing facts the court entered conclusions of law that appellant is entitled to judgment against the respondent Albaugh in the sum of $282.72, without costs, and' that the costs of respondent, including an attorney’s fee of twenty-five dollars for defendant the mechanic’s lien proceedings amounting to twenty-five dollars be deducted' therefrom; that appellant is entitled to judgment against Pink-ston, the contractor, for the full amount of $850 with interest, and for twenty-five dollars as attorney’s fee, and for his costs and expenses of preparing and filing his lien. Judgment was entered accordingly.
While appellant’s counsel has assigned numerous errors, he, in his brief, has reduced all of them to two propositions: (1) That the trial court erred in holding that appellant by kis conduct,. had estopped himself from enforcing or had waived his right to enforce a mechanic’s lien against respondent and her property; and (2) that it erred in holding that the appellant was not entitled to enforce his lien to the extent of the balance remaining in respondent’s hands, and that he could not recover costs and attorney’s fee as against her.
“A materialman, who executes a receipt of payment in full to the contractor for material furnished for á building, for which he sues the owners, who honestly and without any negligence on their part paid the contractor upon the faith of such receipt, is estopped from saying tht the acknowledgment of payment is untrue.”
Under the facts found there can be no doubt that respondent was induced to pay the original contractor at least the sum of $850 upon the receipt issued by appellant in which he represented that he had received payment in full for both the material and labor he had furnished and performed on the dwelling house in question. Appellant therefore clearly authorized, as well as induced, the respondent to pay the contractor the $850, which, but for the receipt of appellant, she undoubtedly would have paid to him. After having induced respondent to pay the money, we cannot see how appellant can complain. In legal effect she paid the money as directed by him, and he must loot to the contractor and not to her for the same. Respondent thereafter had a right to deal with all others who had any claim upon her as though appellant was out of the case.
Nor is the fact important here that some third person who might have had a claim for a lien against respondent’s dwelling waived such right. (Frohlich v. Ashton, 164 Mich. 132, 129 N. W. 18.)
Under the statute, therefore, appellant had lost all rights as against respondent and her property. We remark that this conclusion is based upon the undisputed facts that the appellant issued the receipt to the contractor with the understanding and for the purpose that he should use the same to obtain the money due to appellant as subcontractor from
We think that what has been said sufficiently shows that the trial court did not err in holding that appellant had either waived his right to claim a lien or was estopped by his own conduct from enforcing one. The foregoing also answers the second proposition. The following cases will be found to support the doctrine herein anounced: Chilton v. Lindsay, 38 Mo. App. 57; Cote, etc., Brick Co. v. Sadring, supra; Green Bay Lumber Co. v. Thomas, 106 Iowa, 154, 16 N. W. 651; Frohlich v. Ashton, supra; Phillips on Mechanics’ Liens (3d Ed.) section 213.
The judgment of the trial court is clearly right and is affirmed, with costs to the respondent Albaugh.