Hugg v. Hintrager

• Decision Date: 29 May 1890
• Citation: 80 Iowa 359,45 N.W. 1035
• Parties: HUGG v. HINTRAGER ET AL.
• Court: Iowa Supreme Court

80 Iowa 359

45 N.W. 1035

HUGG

v.HINTRAGER ET AL.

Supreme Court of Iowa.

May 29, 1890.

Appeal from district court, Dubuque county; J. J. NEY, Judge.

Action to foreclose a mechanic's lien against the property of defendant Hintrager. Under date of October 17, 1885, the defendant Hintrager and J. B. Needham entered into an agreement in writing, whereby said Needham contracted to furnish all the material for and to erect on lot 1, subdivision of Dubuque, city lot 724, a double brick dwelling-house, kitchens, cisterns, privies, wood-sheds, fences, etc., completed as per plans and specifications of F. D. Hide, the cost not to exceed $2,500. It was provided that no claim for extra work or material would be made unless the items and prices were indorsed on the contract, and that the improvements would be completed, and keys delivered to the owner, “on or before the 15th day of September, 1885, under a penalty of a forfeiture of $3 for each day of delay by the contractors, in favor of the owner.” The only provision as to manner of payment was that $100 was payable in orders for lime, and that the owner should be allowed $4.70 per 1,000 yard count, for brick furnished. No time of payment was fixed. September 19, 1885, the parties added to this a supplement substituting brick for plank sidewalk, $15.77; waiving all claims theretofore made for excavation from under the building; providing for further excavation by the contractor free of charge, and for the payment of 25 cents per yard by Hintrager to the contractor for excavating from an adjoining lot. Certain credits were allowed to Hintrager in this supplement, and it was provided therein: “The whole job to be completed on or before the 15th day of October, 1885.” About October 15, 1885, these parties entered into another agreement, by which Needham was to furnish all the material for and erect a retaining-wall on said lot for $144.05. The plaintiff claims a lien on the said lot 1 for material furnished for said wall, and defendants T. J. Donahue, J. S. Randall, and Carr, Ryder & Wheeler each claim a lien for labor or materials furnished for the erection of said dwelling and other improvements provided for in the first contract. Judgments were entered in favor of each of these parties, and against J. B. Needham; also a decree establishing and foreclosing liens against said lot 1 in favor of Joseph Hugg, J. S. Randall, and Carr, Ryder & Wheeler, from which decree defendant Hintrager appeals. The cross-petitions of T. J. Donahue and John Gonnica, for the establishment of liens in their favor, were dismissed, and T. J. Donahue appeals. Further facts material to the points discussed will be noticed in connection with the consideration of the respective claims.Powers & Lacy, for appellant Hintrager.

McCeney & O'Donnell, for appellant T. J. Donahue.

Henry Michel, for Joseph Hugg.

McNulty & Barnes, for J. S. Randall.

Fouke & Lyon, for Carr, Ryder & Wheeler.

GIVEN, J.

1. As to plaintiff's claim, it appears that Needham, having contracted to furnish the material and erect the retaining-wall, sublet to John Coogan, who contracted with plaintiff to furnish the stone. Plaintiff furnished stone between October 13 and November 12, 1885, that went into the wall, amounting to $65. On November 20th following, the plaintiff filed his statement for a lien, and served notice thereof on Hintrager. Plaintiff alleges that on settlement with Needham and Coogan for the wall, $65 was left in Hintrager's hands to be paid to him for the rock furnished. Hintrager claims that Needham was to furnish the rock from his own quarry, and that, supposing that he had done so, and before he had any knowledge to the contrary, he paid Needham and Coogan, on Needham's order, in full for the wall. While there is some conflict in the testimony on these points, we think it fairly sustains the conclusion that Hintrager knew that plaintiff had furnished the rock before he made the payment of $79.05, November 16th, and that that amount was paid, leaving $65 in his hands to be paid to the plaintiff. The $100 paid October 31st, on account of painting and stone-mason work, etc., is not shown to relate to this stone-work, and is fully explained by the house contract. Some questions are made as to the sufficiency of the statement filed, but, in view of what we have just stated, the questions are immaterial as between plaintiff and Hintrager, as owner of the real estate sought to be charged. The judgment and decree of the district court, in favor of plaintiff, should be affirmed.

2. There is no question but that the defendant Donahue furnished material...