Andrews v. Burdick
| Decision Date | 15 June 1883 |
| Citation | 16 N.W. 275,62 Iowa 714 |
| Parties | ANDREWS AND ANOTHER v. BURDICK AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Palo Alto district court.
Action in chancery to enforce a mechanic's lien in favor of a subcontractor. 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.T. W. Harrison and Geo. B. McCarty, for appellants.
Soper & Crawford, for appellees.
1. Plaintiffs furnished materials to Burdick & Goble, builders, who were erecting a store-house 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 fifteenth and twentieth of June. It was not finished until the third of July. On the fifth day of June plaintiffs furnished the materials, to recover for which this suit is brought. On the morning of the third of July plaintiffs filed in the clerk's office a statement and claim for a lien, and in the evening of that day caused notice to be served upon Potter & Skevington, as required by the statute. There was evidence showing they had knowledge of the fact that the subcontractor had furnished the materials. But on the third 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:
“(1) Under a written contract for the completion of a building by the fifteenth to twentieth of June, 1880, and the payment therefor to be made upon the completion of the building, which, in fact, was not completed until July 3, 1880, would a subcontractor who furnished materials on the fifth day of June, 1880, and filed a mechanic's lien therefor in the clerk of court's office on the third 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 subcontractor 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 subcontractor upon the owner, can the subcontractor enforce that lien against the building?
(2) Where a written contract provides that the building is to be completed by the fifteenth to twentieth of June, and that complete payment is then to be made, but the building is not, in fact, completed until 13 days thereafter, and the owner acquiesces in such delay, is this such a change in the contract as will entitle a subcontractor 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 subcontractor, although the building may have been completed and the contractor paid in full therefor prior to the expiration of such 30 days?
(3) 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 subcontractor, 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?
(4) 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 subcontractor, 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 30 days after furnishing materials in which to file his lien and serve its notice, regardless of the terms of said written contract?
(5) 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 subcontractor have 30 days after furnishing material in which to file his lien, and serve written notice thereof?”
2. The first question presents, briefly stated, the case of payment, by the owner of the building to the contractor, before the expiration of 30 days after the materials were furnished by the subcontractor, and before service of the written notice required by the statute of the filing of the claim and statement for a lien by the subcontractor, with knowledge that the subcontractor had furnished the materials.
3. The statute secures to a subcontractor a lien for materials or labors. Chapter 100, Acts Sixteenth General Assembly, § 7, (Miller's Code, § 2134; McLain's St. 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 subcontractors, but for no other purpose, the subcontractors must, within the thirty days, as provided in section 6, 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 6, must be given within 30 days after the date upon which the last of the materials was furnished. It will be observed that the lien of the subcontractor may exist for 30 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 30 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...
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