Langan v. SanKey

• Decision Date: 08 December 1880
• Citation: 7 N.W. 393,55 Iowa 52
• Court: Iowa Supreme Court
• Parties: LANGAN & NOBLE v. SANKEY.

55 Iowa 52

7 N.W. 393

LANGAN & NOBLE

v.SANKEY.

Supreme Court of Iowa.

Filed December 8, 1880.

Appeal from Jasper circuit court. Action at law, judgment for the defendant, and plaintiffs appeal.Ryan & Bros. and Lafferty & Johnson, for appellants.

H. R. Stahl, J. C. Cook, and M. E. Cutts, for appellee.

SEEVERS, J.

1. The defendant is an attorney at law, and plaintiffs state, in their petition, certain claims were placed in his hands for the purpose of procuring and enforcing mechanics' liens “thereon, as and for subcontractors, but that, by reason of the want of skill, and by reason of the negligence of said defendant, and from no other cause, no notice of the filing of the claims of said parties as subcontractors was served upon the Iowa, Minnesota & North Pacific Railway Company, its agent or trustee, nor was any attempt made by the defendant to comply with the statute requiring notice,” whereby said lien, instead of being preserved, was wholly lost, to the great damage of the plaintiffs. In response to a motion for a more specific statement, the plaintiffs set out in an amended petition the claims or demands upon which it was sought to establish the lien. They are as follows:

“MONROE, IOWA, November 25, 1876.

Messrs. Field & Eberhart: Please let S. Smith have five dollars in trade, and charge the same to Iowa & Minnesota Railroad Construction Company.

O. FULLER, Foreman.”

“FAIRVIEW, October 12, 1876.

I certify that J. Starge has worked one day in October, at $2.75 per day. Due $2.75.

O. FULLER, Foreman.”

“MONROE, November 30, 1876.

Paymaster: Please give bearer five dollars and fifty cents of my pay.

JOHN ADAMS.”

There were a large number of other orders or vouchers similar to the foregoing, except as to the amount, to whom payable, or by whom drawn.

It was stated in the petition that the parties who placed the claims in the hands of defendant had furnished on said “orders and certificates merchandise and money to the full value of the same, and received such orders and certificates as evidence of indebtedness against said construction company, and that thereby the amounts due the laborers became and were assignments to said parties of the amounts due, as evidenced by said orders and certificates, and that said purchasers and holders of said certificates and orders were entitled to the same rights and remedies that the parties who did the work and received the certificates and orders could have enforced.” On motion of the defendant the paragraphs of the amended petition setting up said orders and certificates as the basis for a mechanic's lien were struck out. This ruling presents the question whether the right to a mechanic's lien is assignable.

It is provided by statute (Miller's Code, § 2139) that “the mechanics' liens are assignable, and shall follow the assignment of the debt.” We have had occasion, recently, to consider and construe the foregoing statute, and have held that a mere inchoate...