89 Iowa 666 | Iowa | 1894
The agreement for the construction of the building in question was entered into between the appellee Mrs. Stillman as owner, and one Greorge S. Monroe as contractor, and provided for the payment of six thousand, nine hundred and fifty dollars for the building completed. The plaintiffs claim* that, as subcontractors of Monroe, they furnished labor and material for the construction of the building of the value of one thousand, one hundred and ninety dollars, which, with interest, is due and unpaid, and for which a mechanic’s lien is asked. The appellee Mrs. Stillman claims that much of the material and labor used in constructing the building was inferior to that contemplated by'the agreement, that the building is unfinished, and that it will cost one thousand dollars to complete it; that she has already paid five thousand, six hundred dollars on account of her agreement with Monroe; that there are liens superior to the claim of the plaintiffs, which will exhaust what there is, if anything, due ünder the agreement; and that the plaintiffs are not entitled to a lien on the building. Monroe having died, the administratrix of his estate is made a party defendant. The district court rendered judgment against her, and in favor of the plaintiffs, for the amount of their claim, but refused to establish a lien therefor as against the building in question, on the ground that no sufficient legal notice of the filing of the statement for a lien was served on Mrs. Stillman within thirty days from the date of the completion of the contract, and on the additional ground that, when the notice. was served, the amount she had paid, and for which she was liable, was as great as the amount due under her agreement.
It is said the service of the notice was not sufficient because addressed to Mrs. Stillman, and not to the agents; and the case of Steele v. Murry, 80 Iowa, 336, is cited in support of that claim. In the case cited it was held, that a notice of the expiration of the right of redemption from a tax sale and the making of a tax deed must not only be served upon, but be addressed to, the person in possession of the land. Such a person is entitled to notice, not in a representative capacity alone, but in his own right, while, under the mechanic’s lien law, the service is made upon the agent only in his representative capacity. We think the notice was sufficient in form, and that its service was binding upon Mrs. Stillman.
Mrs. Stillman also claims that subcontractors’ liens to the amount of two thousand, eight hundred and twenty dollars and thirty-seven cents have been established against the property, in actions which were submitted to the district court with this one, and tried on the same evidence, and that such liens fire senior to the claims of the plaintiff. Of the decrees rendered in those actions establishing liens, a part amounting to one thousand, seven hundred and twenty-six dollars and thirty-eight cents, were rendered against the administratrix and Mrs. Stillman jointly, and a part, amounting to one hundred and forty-nine dollars and fifty-six cents, were rendered against Mrs. Stillman alone. It is claimed by the appellants that, as to the decrees rendered against her, Mrs. Stillman must be regarded as a principal defendant, and, therefore, that such decrees can not be regarded as superior to their claim. That is true, however, only as to a small part of the decrees so rendered. As to the remainder, Mrs. Stillman was in effect only a surety for the contractor. No doubt, she alone was liable for a part of the labor and material on account of which the decrees were rendered, but, after making proper deduction for that part, the amount remaining due on the decrees is more than sufficient to offset the balance due to the estate of Monroe under the contract, and for extras.
■ The appellants contend that certain items, amounting' to the sum of two hundred and eighty dollars, claimed by Mrs. Stillman as credits, should-not have been allowed, but, as no disposition which can be made
It appears that the aggregate amount of the payments already made by Mrs. Stillman, and of the liens established which are paramount to the claims of the plaintiffs, is at least as great as the amount of her contract with Monroe, including her liability for extras he furnished, required her to pay. Therefore, the demand of the plaintiffs for the establishment of a mechanic’s lien in their favor must be denied. The judgment of the district court is affirmed.