16 N.W. 275 (Iowa 1883), Andrews v. Burdick

Citation:16 N.W. 275, 62 Iowa 714
Opinion Judge:BECK, J.
Party Name:ANDREWS & SMITH v. BURDICK & GOBLE ET AL
Attorney:T. W. Harrison and Geo. B. McCarty, for appellants. Soper & Crawford, for appellees.
Judge Panel:BECK, J. ADAMS, J., dissenting.
Case Date:June 15, 1883
Court:Supreme Court of Iowa
 
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Page 275

16 N.W. 275 (Iowa 1883)

62 Iowa 714

ANDREWS & SMITH

v.

BURDICK & GOBLE ET AL

Supreme Court of Iowa, Des Moines

June 15, 1883

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

Page 276

[62 Iowa 715] 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 [62 Iowa 716] 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

Page 277

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...

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