Andrews v. Burdick

Decision Date15 June 1883
Citation16 N.W. 275,62 Iowa 714
PartiesANDREWS & SMITH v. BURDICK & GOBLE ET AL
CourtIowa Supreme Court

Appeal from Palo Alto District Court.

ACTION in chancery to enforce a mechanics' lien in favor of a sub-contractor. Judgment was entered against the contractors but the petition was dismissed as to the owners of the property, the court holding that plaintiffs are not entitled to a lien. Plaintiffs appeal.

REVERSED.

T. W Harrison and Geo. B. McCarty, for appellants.

Soper & Crawford, for appellees.

BECK J. ADAMS, J., dissenting.

OPINION

BECK, J.

I.

Plaintiffs furnished materials to Burdick & Goble, builders, who were erecting a storehouse for Potter & Skevington, under a contract with him. By the terms of the contract, payments were to be made in nearly equal parts upon the execution of the contract, and the completion of the building, and its acceptance by Potter & Skevington. It was to be completed between the 15th and 20th of June. It was not finished until the 3d of July. On the 5th day of June, plaintiffs furnished the materials to recover for which this suit is brought. On the morning of the 3d of July, plaintiffs filed in the clerk's office a statement and claim for a lien, and in the evening of that day caused the notice to be served upon Potter & Skevington required by the statute. There was evidence showing that they had knowledge of the fact that the sub-contractors had furnished the materials. But on the 3d day of July, after plaintiffs' claim for a lien was filed, and before the written notice prescribed by the statute was served, they paid the contractors in full the amount due them for the building. Extra work, amounting to $ 75, was done, and paid for at the final settlement. Extra work was contemplated in the contract.

A motion for a new trial was made by plaintiffs, on the ground that there had been a material alteration of the contract for the building, which was unknown to the plaintiffs before the trial, purporting to bind the contractors to furnish all materials, no such provision being in the original writing. The motion was overruled. The amount in controversy being less than $ 100, the district court certified certain questions of law to this court, whereof the following is a copy, verbatim et literatim. The points raised by the questions will be understood by attention to the facts of the case above stated.

"1st. Under a written contract for the completion of a building by the 15th to 20th of June, 1880, and the payment therefor to be made upon the completion of the building, which, in fact, was not completed until July 3d, 1880, would a sub-contractor, who furnished materials on the 5th day of June, 1880, and filed a mechanics' lien therefor in the clerk of courts' office on the 3d day of July, 1880, before payment was made by the owner to the contractor, and, after said lien was filed, and on the same day, but before written notice therefor was served by the sub-contractor upon the owner, but with verbal notice of the plaintiffs' lien, the owner paid the contractor in full, and afterwards, on the same day, written notice was served of the filing of said lien by the sub-contractor upon the owner, can the sub-contractor enforce that lien against the building?

"2d. Where a written contract provides that the building is to be completed by the 15th to the 20th of June, and that complete payment is then to be made, but the building is not, in fact, completed until thirteen days thereafter, and the owner acquiesces in such delay, is this such a change in the contract as will entitle a sub-contractor to 30 days after furnishing material in which to file his claim for a lien, and serve written notice thereof on the owner, and will the owner be liable to such sub-contractor, although the building may have been completed and the contractor paid in full therefor prior to the expiration of such 30 days?

3d. Where a contract for the building of a store-room provided that the contractor should furnish such extras as should be ordered by letter, and extras were, in fact, furnished by them, but it is not shown whether they were ordered by letter or otherwise, and when the contract provides for payment of the contract price upon the completion of the building, but is silent as to the date of payment for the extras that may be furnished, can a sub-contractor who furnished material and filed his claim for a lien, and gave written notice thereof within 30 days, establish a lien against the building for the materials furnished by him, or to the extent of the extras furnished by the contractors, if the building was finished and accepted by the owner within 30 days, and payment in full made therefor to the contractors within the 30 days?

"4th. Where there was a written contract for the erection of a building, would an unauthorized material alteration in the terms of said contract, after it was executed and delivered, entitle a sub-contractor, who furnished material for said building, to 30 days after the materials were furnished in which to file his lien and serve written notice thereof? Would such alteration of the written contract invalidate it, so that the subcontractor would have thirty days after furnishing materials in which to file his lien and serve his notice, regardless of the terms of said written contract?

"5th. Where a written contract has been materially altered without authority, after execution and delivery, would the parties therein be permitted to show and rely upon the oral agreement upon which the written agreement was drawn, or will the parties be required to rely and recover, if at all, upon an implied compact to pay when the building was completed, and in such case would the sub-contractor have thirty days after furnishing material in which to file his lien and serve written notice thereof?"

II. The first question presents, briefly stated, the case of payment by the owner of the building to the contractor before the expiration of thirty days after the materials were furnished by the sub-contractor, and before service of the written notice, required by the statute, of the filing of the claim and statement for a lien by the sub-contractor, with knowledge that the sub-contractor had furnished the materials.

III. The statute secures to a sub-contractor a lien for materials or labor. Chap. 100, Acts Sixteenth General Assembly, § 7 (Miller's Code, § 2134; McClain's Statutes, p. 599) provides that, "to preserve his lien as against the owner, and to prevent payment by the latter to the principal contractors or to intermediate sub-contractors, but for no other purpose, the sub-contractor must, within the thirty days, as provided in section six, serve upon such owner, his agent or trustee, a written notice of the filing of said claim." The notice referred to, which is provided for by section six, must be given within thirty days after the date upon which the last of the materials was furnished.

It will be observed that the lien of the sub-contractor may exist for thirty days without the written notice. If such written notice be not given within that time, the lien ceases. The provision is explicit, and no exception is found in the statute which will discharge the lien within the thirty days. But this court, liberally construing the statute, so as to protect the owner who in good faith paid the contractor in accord with the agreement between them, held that such payment, made without knowledge on the part of the contractor of the claim of the sub-contractor, would defeat the lien of the latter. Stewart & Hayden v. Wright, 52 Iowa 335, 3 N.W. 144. The decision is based upon the right of the parties to the contract to make payment as provided therein, and the doctrine that the sub-contractor must take notice of the contract between the owner and contractor, and that his rights are subordinate thereto. The want of knowledge by the owner of the claim of the sub-contractor is explicitly stated and recognized as a controlling element in the case.

In harmony with the foregoing case, Winter & Co. v Hudson, 54 Iowa 336, 6 N.W. 541, holds that payment by the owner, in accord with...

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