Kawneer Mfg. Co. v. Renfro

• Decision Date: 20 September 1919
• Docket Number: No. 32662.,32662.
• Citation: 186 Iowa 1344,173 N.W. 899
• Parties: KAWNEER MFG. CO. v. RENFRO & LEWIS ET AL.
• Court: Iowa Supreme Court

186 Iowa 1344

173 N.W. 899

KAWNEER MFG. CO.

v.RENFRO & LEWIS ET AL.

No. 32662.

Supreme Court of Iowa.

Sept. 20, 1919.

Appeal from District Court, Crawford County; E. G. Albert, Judge.

Suit in equity to establish and foreclose a mechanic's lien. The trial court found for defendants, and plaintiff appeals. Affirmed.Conner & Powers, of Denison, for appellant.

R. Shaw Van and Sims & Kuehnle, all of Denison, for appellees.

WEAVER, J.

The defendants Renfro & Lewis, a firm of building contractors, entered into an agreement with their codefendants, Flora M. Wright and Richard Kinney, for the improvement, alteration, and repair of a two-story brick block owned by the parties last named in the city of Denison, Iowa. The plaintiff is a dealer in building materials, and claims to have sold and delivered to Renfro & Lewis certain material to be used in the performance of their contract with Wright and Kinney to the amount and value of $265. The indebtedness thus created not being paid, plaintiff filed its claim for a lien upon the property, and brings this action to foreclose the same.

The defendants Wright and Kinney, separately answering, deny the plaintiff's claim, deny that plaintiff has or is entitled to any lien against their property for the indebtedness of Renfro & Lewis, and deny that they or either of them is indebted in any sum to said contractors. Further answering, the defendants allege that by the terms of their contract with Renfro & Lewis payment was to be made only upon the furnishing of the material and completion of the work contemplated by the contract, and that before the contract was performed, or its conditions fulfilled, the building collapsed and was ruined by reason of the negligence of the contractors in constructing another building on the adjoining lot for one Goldheim, whereby said answering defendants never became and are not now indebted to Renfro & Lewis on account of their said work, and their said property never became and is not now subject to plaintiff's alleged lien.

In reply, plaintiff alleges that the materials furnished by it were used in the building, and that Wright and Kinney had elected to bring their action for damages against Goldheim for the value of their building in its improved condition, and had recovered judgment therefor. The trial court found for the defendants, dismissed the bill, and plaintiff appeals.

By way of further explanation, it may be said that the judgment in the action by Wright and Kinney against Goldheim was affirmed upon appeal to this court. See Wright v. Goldheim, 169 N. W. 343.

I. As an introduction to their argument, appellants' counsel state certain abstract propositions of law as follows: (1) That the fact that no building was on the lot when the claim for a lien was filed does not defeat the right to a lien; (2) that substantial performance of the contract is sufficient to sustain a recovery of the price, subject only to reasonable deduction for slight defects or deficiencies in the work done; (3) that destruction of the building without the contractor's fault relieves the contractor from further performance, and he is entitled to recover for the work done and materials furnished; and (4) that a defense which is not available by the owner against the principal contractor will not serve to defeat the lien of a subcontractor.

[1] For the purposes of this case, all these propositions may be conceded, without necessitating any other conclusion than was reached by the court below. The appellees do not contend, nor did the court hold, that they can defeat or avoid plaintiff's right to a lien, if, as between appellees and Renfro & Lewis, the latter are entitled to recover upon the contract or for the value of the work done and materials furnished by them. Their defense, briefly stated, is that they never became and are not now indebted to Renfro & Lewis, and that as a necessary result of that fact their property cannot be subjected to a lien to secure payment of the debt of Renfro & Lewis to the plaintiff. That this is a good defense to the plaintiff's claim, if borne out by the record, cannot be doubted. The statute which provides for the right of a subcontractor to a lien upon a building or property expressly declares that nothing therein “shall be construed to require the owner to pay...