Lofsted v. Bohman

• Decision Date: 08 February 1913
• Docket Number: 17,780
• Parties: CHARLES J. LOFSTED, Appellee, v. OTTO F. BOHMAN et al., Appellants
• Court: Kansas Supreme Court

129 P. 1168

88 Kan. 660

CHARLES J. LOFSTED, Appellee, v. OTTO F. BOHMAN et al., Appellants

No. 17,780

Supreme Court of Kansas

February 8, 1913

Decided January, 1913.

Appeal from Trego district court.

Cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MECHANIC'S LIEN--No Judgment against Owner until Subcontractor's Liens are Adjusted. The owner who has partially paid the contractor for the erection of a building should not be subjected to a judgment in favor of such contractor for the claimed balance until the subcontractors have had their claims and liens finally adjudicated.

2. BUILDING CONTRACT--Measure of Recovery. When the contractor has in good faith constructed the building in substantial compliance with the terms of the contract he is entitled to recover the agreed price less such sum as will be required to effect strict and literal compliance.

Lee Monroe, W. S. Roark, both of Topeka, and I. T. Purcell, of Wa Keeney, for the appellants.

David Ritchie, of Salina, for the appellee.

OPINION

WEST J.:

Bohman owned a farm on which Lofsted contracted to build a house for $ 1600. The contractor bought his materials of Burbeck &amp Lucas, lumber dealers, who filed a subcontractor's lien for $ 559.53. Bohman paid Lofsted $ 1015 on the contract and furnished material and labor amounting to $ 57.40. The subcontractors sued the contractor and owner to foreclose their lien, Bohman and wife answering admitting the lien, denying the correctness of the account and alleging that only a portion of the materials charged for had been used in the construction of the house. Lofsted answered admitting the correctness of the subcontractors' account, and in a second count alleged a failure of Bohman and wife to pay $ 585 of the contract price, for which he prayed judgment against them. They demurred to the second account, which demurrer was sustained. Lofsted dismissed that cause of action without prejudice and brought this action to recover the $ 585, praying that the same be adjudged a lien on the land. The defendants entered a general denial and a plea that the action should be dismissed and abated because of the pending suit to foreclose the subcontractors' lien, and further claimed a set-off for $ 57.40 for labor and material, afterwards admitted as correct, and $ 800 damages for failure to construct the house according to contract. They asked that if the action be not abated and dismissed the defendant Bohman have judgment against Lofsted for $ 340. The first trial resulted in a verdict in favor of the defendants. Upon a second trial, at the close of the evidence the defendants moved to abate the action, calling attention to the fact that the contractor had admitted that he claimed only 547.97, while by his answer in the lien suit he had admitted that there was still due the subcontractors $ 569.60. The motion was overruled. The jury returned a verdict in favor of Lofsted for $ 275.60, for which sum judgment was rendered against Bohman, the court also finding that the obligation merged in such judgment was for improvements upon defendants' homestead. A motion for new trial was overruled.

It is argued that this action was prematurely brought for the reason that the lien suit was still pending and undisposed of and that as Bohman had paid $ 1015 he could not be required to pay any further sum for material for which the men who furnished it were entitled to receive pay from Lofsted. The defendants also urge that the court erred in refusing to instruct the jury in substance that a contractor could not recover a stipulated price for erecting the building until he had substantially complied with his contract and surrendered it to the owner free from all just claims for material; that he must first pay for the material and discharge the premises from any and...