Chicago Lumber & Coal Co. v. Garmer

• Decision Date: 17 November 1906
• Citation: 109 N.W. 780,132 Iowa 282
• Parties: CHICAGO LUMBER & COAL COMPANY, Appellant, v. B. F. GARMER, W. B. BASTIAN, MRS. W. B. BASTAIN, R. H. PARRY AND THE SHACKELFORD BRICK COMPANY
• Court: Iowa Supreme Court

109 N.W. 780

132 Iowa 282

CHICAGO LUMBER & COAL COMPANY, Appellant, v. B. F. GARMER, W. B. BASTIAN, MRS. W. B. BASTAIN, R. H. PARRY AND THE SHACKELFORD BRICK COMPANY

Supreme Court of Iowa, Des Moines

November 17, 1906

Appeal from Polk District Court.-- HON. WM. H. MCHENRY, Judge.

PLAINTIFF supplied B. F. Garmer materials with which to erect a dwelling house for Mrs. W. B. Bastian, and in this action prays judgment therefor against Garmer, and for the establishment of a mechanic's lien on the property.Judgment was entered against Garmer, but other relief was denied.The plaintiff appeals.-- Affirmed.

Affirmed.

Clinton L. Nourse, for appellant.

Halloran & Starkey, for appellees.Parker & Hartman, for Shackelford Brick Co.

OPINION

LADD, J.

The defendant, Mrs. W. B. Bastian, entered into a contract with her codefendant, B. F. Garmer, September 10, 1904, by the terms of which the latter agreed to furnish material for, and erect, a dwelling house on her lot for the consideration of $ 2,376.Thereafter Garmer contracted for the necessary lumber and mill work with plaintiff, who delivered goods to the value of $ 614.36 between October 1st and November 3d inclusive.On November 4th the contractor notified the architect that it was impossible for him to complete the contract, and three days later the architect certified that this was sufficient ground for its forfeiture.Thereupon Mrs Bastian completed the house at an expense of $ 1,167.52.She had previously paid Garmer on certificates of the architect $ 600 October 17th, and the same amount October 28, 1904.These payments were according to the terms of the contract, and, as affecting them, the only issue to be determined is whether at the time of making them, the owner had knowledge that plaintiff was furnishing the material.If she was aware of this, the law seems to be well settled that payment to the contractor will not constitute a defense.Chicago Lumber Co. v. Woodside,71 Iowa 359, 32 N.W. 381;Simonson Bros. Mfg. Co. v. Citizens State Bank,105 Iowa 264, 74 N.W. 905;Wheelock v. Hull,124 Iowa 752, 100 N.W 863;Page v. Grant,127 Iowa 249, 103 N.W. 124.And the contract in substance so provided.SeeQueal & Co. v. Stradley,117 Iowa 748, 90 N.W. 588.

As bearing on Mrs. Bastian's knowledge the evidence is in sharp conflict.The manager of plaintiff testified to two conversations with her at his office.She denied having had one, and claimed that the other was subsequent to the last payment.He is somewhat corroborated by the bookkeeper of the company who, however, fixed the date two or three weeks later than the manager.On the other hand, he is somewhat discredited by other circumstances.He testified that at the first interview she stated that "she was going to pay the bills so as to be safe."But, under an arrangement with the owner, one Perry was paying all the bills, and her husband testified that the manager had said to him that he was not certain whether it was Mrs. Bastian or Perry who had promised to pay.The manager denied this.Moreover, Mrs. Bastian claimed that the first time she had ever met the manager was at the architect's office subsequent to the forfeiture of the contract, and she is corroborated in this by the fact that Perry then introduced her to the manager, a circumstance unlikely to have occurred had the interviews taken place at his office as he testified.Both agree that she telephoned to him but once.The manager fixed the time as Monday after the first interview, while she said it was the day after the last payment.In this she is corroborated by the clerk of the architect, who recalled a conversation on that day in which she informed Mrs. Bastian, in response to a question where Garmer had obtained materials, secured telephonic connection with the plaintiff for her, and heard a conversation over the telephone substantially as testified by both parties.Garmer testified that when he was putting in the foundation Mrs. Bastian asked him who was furnishing the glass, that he informed her, and that she subsequently inquired of him whether he had paid plaintiff out of the first money given him.Mrs. Bastian admitted having made the inquiry with reference to the glass, but testified that it was a couple of days before he abandoned the contract, and that nothing was said concerning who was furnishing the materials.It will thus be seen that treating witnesses as of equal credibility the record warranted a finding that the talk over the telephone occurred subsequent to the last payment.While two witnesses testified to a conversation at the office, they were not agreed as to the date, and Mrs. Bastian is corroborated by her husband in respect to the manager's doubt whether she promised to pay and also by the circumstance that she was introduced to the manager at the architect's office subsequent to the last payment.Her testimony is quite as reasonable as that of Garmer's, as she would be unlikely to make the inquiries concerning the art glass so long before it was required or her interview with the manager concerning the same.The evidence on the part of the defendant is quite as reasonable as that in plaintiff's behalf, and as the witnesses were before the district court, having superior advantages for weighing their credibility, we are not inclined to interfere with its finding that Mrs. Bastian was not advised that plaintiff was furnishing the materials prior to making the payments.

II.Appellant next insists that the forfeiture of the contract was irregular in that there was no certificate of the architect of grounds therefor, and that his certificate of the cost of completing the house was not introduced in evidence.As already noted, the certificate first mentioned was proven.SeeWhite v. Mitchell,30 Ind.App. 342(65 N.E. 1061).If the last was essential the burden was upon the plaintiff to introduce it.The portion of article 5 of the contract involved reads:

In case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner.The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose certificate thereof shall be conclusive upon the parties.

The rule prevails that the subcontractor must enforce fore a lien will be enforced against the owner, to show that he cannot insist upon payments by the owner different in manner or in greater amounts than those stipulated in the contract, save as this rule may be modified by knowledge that the subcontractor is furnishing material and lumber on credit.Stewart v. Wright,52 Iowa 335, 3 N.W. 144;Martin v. Morgan,64 Iowa 270, 20 N.W. 184;Epeneter v. Montgomery County,98 Iowa 159, 67 N.W 93.The burden is upon the subcontractor, before a lien will be enforced against the owner, to show that there was such an indebtedness on the part of the owner to the contractor either at the time the subcontractor's accounts commenced or later as will justify the court in decreeing a lien.Parker v. Scott,82 Iowa 266, 47 N.W. 1073;Martin v. Morgan,64 Iowa 270, 20 N.W. 184.As the contract had been forfeited, the contractor, under the express conditions of the agreement, was not entitled to receive any further payment until the work was finished.The owner's indebtedness to the contractor could only be established by showing the completion of the work, and that the unpaid balance of the amount stipulated to be paid exceeded the expense...