Beach v. Wakefield
| Decision Date | 11 October 1898 |
| Parties | S. J. BEACH AND CHARLES L. WELD, Partners Under the Firm name of Beach & Weld, Appellee, v. E. C. WAKEFIELD et al., Appellee, WARWICK HOUGH, Receiver of the Sioux City Terminal Railroad and Warehouse Company, Appellant, and the TRUST COMPANY OF NORTH AMERICA, Appellant, et al |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.
Supplemental Opinion February 7, 1897.
THESE proceedings had their inception in an action by plaintiff firm to establish and foreclose a mechanic's lien. The claim is that defendant Wakefield was the principal contractor for the erection of a depot building for the Sioux City Terminal Railroad & Warehouse Company, and that plaintiff, as a sub-contractor, furnished material for such building; and the prayer is that a lien be established upon the real estate whereon said depot is located, and that a decree be given foreclosing the same. Wakefield filed an answer and cross petition. He denies the amount of plaintiff's claim, but admits the sum of two thousand one hundred and eighty-seven dollars and forty-seven cents is due. He also seeks to establish a mechanic's lien, and avers that his lien, which he claims upon much other real estate besides that upon which the depot is located, is superior to that of any of the other parties hereto. Continuing, Wakefield alleges his contract with the Terminal Company for the erection of a depot building. He claims there is due him under said contract, and for extras, and by agreement and final settlement the sum of fifty-one thousand and ten dollars and eighty-four cents; and for this amount he prays his lien be established. This cross-petition is amended in certain particulars, which need not be here set out. It is well, perhaps, to state that the various parties hereto were made defendants in this pleading. There were many parties who filed answers and cross-petitions. We need concern ourselves here with but two of them,--the Terminal Company and the Trust Company of North America. There are some special issues, which we shall set out in the course of the opinion but most of the other parties are sub-contractors, who are seeking to enforce their liens, and there is nothing of particular importance in the pleadings they have filed. The substituted answer of the Terminal Company is a general denial of the allegations of the petition and of all cross-petitions. The Trust Company of North America (which we shall hereafter designate as the "Trust Company") puts in issue, by a denial, the various affirmative allegations made against it in the pleadings of the other parties, and sets up a mortgage for the sum of one million two hundred and fifty thousand dollars, which it seeks to have declared a first lien on the Terminal property. This perhaps, is sufficient as a statement of the case. When it is said that the pleadings and exhibits fill one hundred closely-printed pages of the abstract, it will be seen that some condensation is necessary. The decree of the district court established the lien of Wakefield in the sum of fifty-nine thousand six hundred and eighty-two dollars and sixty-eight cents, with interest at six per cent. from August 3, 1896, for the benefit of himself and his subcontractors the amount and order of whose liens are fixed in the decree including the Gillette-Herzog Company, in the amount of fifteen thousand four hundred and six dollars and eighty-nine cents. The Trust Company is given a lien under its mortgage for one million two hundred and fifty thousand dollars, with interest, but it is expressly made subordinate to the mechanics' liens. Hubbard, trustee, is also found entitled to a lien in the sum of seven hundred and eighteen thousand dollars and interest. The Hubbard lien is, however, postponed to that of Wakefield, and also to that of the Trust Company. The Trust Company appeals from the decree in so far as it fixes the amount of the mechanics' liens, and establishes the mortgage lien as inferior thereto. Wakefield, Hubbard (as trustee and as assignee), Hough (receiver), the Terminal Company, the Credits Commutation Company, Spalding, and others appeal. The details of their respective complaints will be stated in the opinion; that is, so far as they have been urged in this court.--Modified and Affirmed.
AFFIRMED.
A. F. Call for appellant Trust Company of North America.
Wright & Hubbard for appellant Warwick Hough.
Swan, Lawrence & Swan for appellees Beach & Weld.
Taylor & Burgess, Argo, McDuffie & Argo, Carter & Brown, J. O'Donovan Rossa, Strong & Owen, Lynn & Foley, Marsh & Henderson, Marks & Mould, F. E. Gill, T. P. Murphy, Henderson, Hurd & Kiesel, and Chase & Dickson for appellees E. C. Wakefield and others.
The Sioux City Terminal Railroad & Warehouse Company was organized and duly incorporated under the laws of this state. The purpose of its organization, as stated in the articles of incorporation, was to construct, operate, and maintain one or more lines of railway within the corporate limits of Sioux City, Iowa, with all needed side tracks, depot yards, warehouses, storage houses, elevators, and all other needed terminal facilities; and shall have power to acquire by purchase or condemnation all needed grounds for right of way, depot purposes, and side tracks, wood and water stations, and to hold, use, and control the same; and shall have power to construct, operate, and control one or more lines of railway from the depot and yards of said company in Sioux City,--one to run in an easterly direction to the east line of Woodbury county, Iowa, one to run in a westerly direction to the Big Sioux river, and one in a northerly direction to the Iowa state line; and shall have power to lease grounds and buildings, to purchase and hold all needed grounds for the use and purpose of said company, and to mortgage, lease, or sell the said grounds, and improvements thereon." Proceeding to carry out this plan, a contract was made with Wakefield to erect for it a passenger station and train sheds, and the various controversies here grow out of that undertaking.
I. The Gillettte-Herzog Company was a sub-contractor under Wakefield. It filed a cross-petition in this action, claiming to be a creditor of Wakefield, and asked a judgment against him for the sum of twelve thousand eight hundred and forty-five dollars and ninety-one cents and interest, and for the establishment and foreclosure of a mechanic's lien against a part of the Terminal property. This relief was granted, and complaint is made by Wakefield of this action of the trial court. It seems that in April, 1893, Wakefield gave said company the following written order on the Terminal Company, the amount named therein being the full sum due on its contract:
As appears upon its face, this order was accepted by the drawee. Shortly after this transaction the Terminal Company paid the sum of ten thousand dollars on this order, and later gave the Gillette Company a check for five thousand seven hundred and twenty-two dollars and ninety-four cents, the same being drawn on the Trust Company of North America. This check was not honored. A certain reduction in the amount of the Gillette Company's claim was afterwards made on account of freight charges paid by Wakefield. We do not discover that the amount found due on this claim is questioned, but it is said that the order on the Terminal Company was given by Wakefield and accepted by the Gillette Company in full satisfaction and payment of the latter's account. The rule is that the giving of an order on a third person will operate as payment of a precedent debt, if there is an express agreement to that effect. Farwell v Salpaugh, 32 Iowa 582; Huse v. McDaniel, 33 Iowa 406; 2 Daniel Negotiable Instruments, 1262. There is evidence showing that at the time this order was given the parties spoke of it as being in settlement and full satisfaction of the account, and that the Gillette Company afterwards asserted that it had no claim against Wakefield. This evidence is uncontradicted. Indeed, counsel for the Gillette Company does not seriously contend that this was not payment. His main effort to sustain the finding of the lower court is grounded upon the claim that the order operated as an assignment of the fund, and that a right to a lien passed by the assignment. Under our finding of fact that the acceptance of the order was a payment of the claim as far as Wakefield is concerned, it is manifest that the Gillette Company is not entitled to a personal judgment against him, and it is insisted by counsel who resist this claim that it has no right to a mechanic's lien. The claim of an equitable assignment of Wakefield's right is met with the assertion that it is only the perfected lien that is assignable, and not a mere inchoate right to a lien. We have quite lately held that the right to a lien is assignable before the statement therefor is filed, if the parties so intend. Peatman v. Power Co., 105 Iowa 1, 74 N.W. 689. But, as we see this case, that question is not involved. The Gillette Company is not claiming Wakefield's right to a lien through an assignment, but its own right based on its claim as a sub-contractor. The real...
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