Beach v. Wakefield

• Decision Date: 07 February 1899
• Citation: 78 N.W. 197,107 Iowa 567
• Court: Iowa Supreme Court
• Parties: BEACH ET AL. v. WAKEFIELD ET AL.

107 Iowa 567

78 N.W. 197

BEACH ET AL.

v.WAKEFIELD ET AL.

Supreme Court of Iowa.

Feb. 7, 1899.

On rehearing. Modified.

For former opinion, see 76 N. W. 688.

WATERMAN, J.

A vigorous assault was made upon the foregoing opinion, in an application for a rehearing, by most of the numerous parties interested. While we do not think it necessary to reopen the case, we have concluded to make certain modifications in the holdings first announced. In the original opinion, the Gillette-Herzog Company was advanced from the thirteenth to the eleventh place in the list of mechanic's lien claimants, as fixed by the district court. We conclude, upon consideration, that the change was not warranted. The lien is, therefore, reinstated in the place from which we attempted to take it.

2. Next, as to the amount due Wakefield, which was allowed precedence over the mortgage of the Trust Company of North America. This we fixed at $17,475.87. In the reply of the trust company named there is an admission of $19,006.51 as due Wakefield under his contract and for extras. It is claimed by the trust company that this amount was inadvertently stated, through an error in writing the figures. We may say further, as to this matter, that this admission, though mentioned in the statement of the case by the opposing parties, was not insisted upon in argument. Wakefield, and those claiming under him, relied wholly, in their discussion of the case, upon the settlement with Garretson, and insisted upon their right to the amount therein allowed. But, notwithstanding these facts, we think they are entitled to the benefit of the admission. This amount, added to the $1,700 item spoken of in the former opinion, would make the sum of $20,706.51 due Wakefield from the terminal company, which should have priority over the mortgage of the Trust Company of North America.

3. These are the corrections which we think proper to make. There is, however, another matter of which it is well to speak, now that we have the case again under consideration. Under Wakefield's contract the terminal company was obliged to reserve 15 per cent. of the amount due him until the completion of his contract, and it is strenuously claimed that this sum--about $15,875.58--should be added to the amount we have found to be due him. In making this claim on behalf of the mechanic's lien claimants, another clause of the contract is wholly overlooked. That instrument provided that, if Wakefield failed to complete...