164 Iowa 495 | Iowa | 1914
I. The plaintiff, Wheeler Lumber, Bridge & Supply Company, commenced this action to establish and foreclose á mechanic’s lien, making the owners of the property, the contractors, and Carr & Adams Company, a junior lienholder, defendants. The contractors made default, the owners denied liability, and the junior lienholder filed a cross-petition, asking that its lien be established and foreclosed junior to the lien of the plaintiff. Upon hearing, the trial court entered judgment against the contractors for the amount of the claims of plaintiff and cross-petitioner, and established the claims as liens in the order prayed, from which the owners appeal.
The land, in fact, belonged to Caroline J. White, the wife of George F. White, but it is shown by the testimony of both husband and wife that the contract was made with her approval; that she had knowledge of it; and that at all times during the progress of the work she knew of it and of the claims of various materialmen. She claims, however, that she expressly stated that she would expend only $3,510 in the construction of the' dwelling, and that, as the establishment of the liens sought to be enforced in the present action would exceed the total amount payable under the contract, she nor her property cannot be held liable for such excess. In her testimony she stated that she recognized her liability for certain extras which had gone into the building, and which would increase the total cost. Other conditions permitting, the right to a lien upon her land for material used in the building, under this showing of facts cannot be questioned. Band v. Posher, 73 Iowa, 396. The record shows that during the progress of the work White paid to the contractors various amounts aggregating $2,125, the last of which was on March 16, 1912. The claims for liens which are made by the plaintiff and by the cross-petitioners are for material which either admittedly went into the building, or is proven by such facts as satisfy us that the defendants received the benefit of all for which claim is made.
III. Reaching the conclusion that the claims for liens were filed in time, and also that the rights and liability of Mrs. White must in all respects be determined as though she had personally made the contract with the Burnett Bros., and as though she had performed the acts done by her husband in settling with materialmen, as such will be hereafter considered, we turn to the facts bearing upon the claims of the Wheeler Company and the Carr & Adams Company, which were, by the decree of the trial court, established in the amounts claimed as liens against the property, there being no real dispute as to the items, excepting as we have stated, but upon their right to liens.
The last item in the account of Carr & Adams Company was January 30, 1912, and their claim for lien was filed June 13th following. To bring themselves within the protection of Code, Section 3094, as to claims of subcontractors filed after thirty days, a notice as provided by that section was served upon Mrs. White. While appellants admit the presence at their home of the officer whose return shows the service, and its manner, they deny that service was had upon them. The return of the officer, which is presumptively correct, is supported by his testimony as to what was done; and from the record we are satisfied with the conclusion upon this branch of the ease that there was proper service of the notice. The claim for a lien of the Wheeler Company, filed June 12th, was in time under Code, Section 3093, and that of the Carr & Adams Company filed June 13th, and followed immediately by the notice to the parties, gave to each the general rights of subcontractors. We must then determine whether, under the facts shown in this record, as subcontractors, there was a fund due and payable under the original contract which is subject to their liens.
V. It is conceded that the appellants paid, on the order of the contractor, to the Des Moines Clay Company $100 on July 6th and $200 on July 7th; to Edwin Cutler, plumber, $275 on April 13th; Clifford & Company, April 29th, $169.80; Garver Hardware Company, July 18th, $75; and the Citizens’ Electric Company, July 27th, $30 — all of such payments being on account of material used in the construction of the
The claim of the Wheeler Company is $578.83, and interest, and that of the Carr & Adams Company $157.45, and interest, which amounts, added to the payments made to other materialmen, exceeds the balance payable under the contract. From these facts we must determine the effect which follows the payment of certain material claims to the exclusion' of others of which the parties at the time had knowledge. Appellants knew or were presumed to know of the right of subcontractors to file and establish their liens, and which would be good as against any material claims not so established. Charged with such knowledge they made payments from the balance which would be due the contractor upon the completion of the work, to the exclusion of other creditors of whose claims they knew. With such knowledge it became the duty' of the appellants in justice to all material claimants whose rights to liens might yet be asserted,, to make no payments until liens were filed, and then to have them discharged in accordance with the provisions of the statute, which is aimed to protect the owner and also the diligent claimant. Othmer Bros. v. Clifton, 69 Iowa, 656; Queal v. Stradley, 117 Iowa, 748; Simonson v. Bank, 105 Iowa, 264; Green Bay Lumber Co. v. Adams, 107 Iowa, 672. Under the rule of these authorities,
The decree of the trial court establishing the claim of the Wheeler Company as a first lien upon the property, and that of the Carr & Adams Company as a second lien is correct, and it is — Affirmed.