Page v. Grant

• Decision Date: 08 April 1905
• Citation: 127 Iowa 249,103 N.W. 124
• Court: Iowa Supreme Court
• Parties: L. A. PAGE & SON v. GRANT.

127 Iowa 249

103 N.W. 124

L. A. PAGE & SON

v.GRANT.

Supreme Court of Iowa.

April 8, 1905.

Appeal from District Court, Cerro Gordo County; J. F. Clyde, Judge.

Actions to enforce mechanics' liens against the property of the defendant, Grant. The trial court rendered judgment against the principal contractor for the sum of $1,170.75, and established liens against the owner of the property to the amount of $842.88. Both parties appeal, but, as defendant was the first one to perfect an appeal, he will be called “appellant.” Affirmed on plaintiff's appeal. Modified on defendant's appeal.Glass, McConlogue & Witwer, for appellant.

Blythe, Markeley & Rule and Cliggitt, Rule & Keeler, for appellee.

DEEMER, J.

On or about July 11, 1901, defendant, Grant, as owner, entered into a contract with one Bushman, as principal contractor, to erect a house for him (Grant) upon certain lots in the city of Mason City for the agreed price of $2,600 and a certain house which then stood upon the lots. By the terms of the writing made between the parties, Bushman was to erect a two-story frame house, “the same to be built as Joe Barlow's house. The roof to be painted, omitting doors in cupboard on dining room side. Outside wall to be sheeted, papered and sided, inside wall to be plastered. First floor lining to be sheeting boards. Finish flooring maple. All other floors to be No. 2, fence flooring. The second story floor to be a single floor. Labor and material to be as good as Barlow's. All outside and roof to receive two coats of paint. All oak to receive two coats of filler and two coats of varnish. Pine to have two coats of varnish. All according to the drawings, plans and specifications to their fullest meaning and intent, and the said party of the second part covenants and agrees to pay unto said party of the first part for the same, the sum of twenty-six hundred ($2,600.00) dollars and the old house on lot ______ dollars lawful money of the United States in payment as follows: The sum of $500.00 when the stone wall is finished; $300.00 when sheeted to the square; $300.00 when main roof is on; $500.00 when ready for plastering; $500.00 when plastering is finished; $500.00 when building is completed.” Plaintiffs Page & Son furnished certain lumber and building material for the structure, the first item being delivered August 19th and the last on October 28, 1901. The Mason City Manufacturing Company also furnished material for the building, the first item being delivered October 24th and the last on November 4, 1901. It filed a statement for a mechanics' lien and afterwards assigned its claim to the plaintiff. The Knapp Hardware Company also furnished material for the improvement, the first item of which was delivered August 21st and the last on November 13, 1901. It also filed its statement for a mechanic's lien, and then assigned its claim to the plaintiff. Questions common to the three claims we shall first decide.

1. Defendant insists that, as he paid the entire purchase price to the contractor in strict accord with the terms of his contract, he cannot be made liable to subcontractors for any further or greater sum. But he admits in this connection that during the progress of the work, and before all the payments were made, he acquired knowledge from certain subcontractors that they were furnishing materials for his building, which had not been paid for--as to one of them before the last two payments were made, and as to the other before the last payment was made. As to these the owner was not, under our more recent holdings, as well as some of the earlier ones, justified in paying the principal contractor, even in strict accord with the terms of the contract. Queal v. Stradley, 117 Iowa, 750, 90 N. W. 588;Simonson Co. v. Bank, 105 Iowa, 264, 74 N. W. 905;Lumber Co. v. Adams, 107 Iowa, 672, 78 N. W. 699;Lumber Co. v. Thomas, 106 Iowa, 154, 76 N. W. 651;Iowa Stone Co. v. Crissman, 112 Iowa, 123, 83 N. W. 794. If the owner observes the law, he cannot, of course, be made liable to subcontractors in such a way or to such an amount as to increase or add to the contract price of the building. Wickham v. Monroe, 89 Iowa, 666, 57 N. W. 434. But by failing to observe his original contract as to time of payment, or to follow the law as to the rights of subcontractors, he may become liable for more than the original contract price. See cases hitherto cited.

2. Next it is contended that, as the mechanic's lien claimants or their assignee did not serve notices as required by section 3093 of the Code, relating to the perfection of subcontractors' liens, nothing should be allowed either Page & Son or the Mason City Manufacturing Company, under the doctrine of Frost v. Rawson, 91 Iowa, 553, 60 N. W. 131, and other like cases. Going to the record, we find that the objection is not that no notice was in fact given, or to the form thereof, but to the proofs of service thereof. There was an unverified return on each notice, signed by one J. S. Confer, who it seems was the sheriff of Cerro Gordo county, but who did not sign the returns as such. When these notices were offered, one was objected to as incompetent, immaterial, and not a notice contemplated by the statute in cases of this kind. Manifestly, this objection does not go to the proof of service, and it was properly overruled. The objection to the notice of the manufacturing company claim was “incompetent, immaterial, irrelevant, and shown by the return of the officer as not being service of notice on the defendant as contemplated by the statute.” This objection is a little ambiguous. It certainly did not advise the trial court that the return of service was objected to, or that there was not proper proof of service. Indeed, if such an objection had been made in the trial court, it might easily have been cured. The case is triable de novo, but in the light of objections made to the testimony in the trial court, and of what was understood to have been the purport of the objections there. An objection should be such as to apprise the trial court of the exact point upon which counsel relies. Brier v. Davis (Iowa) 96 N. W. 983. This is especially true as to such technical objections as were here interposed. The objection recognized the return as having been made by an officer, and it is only by inference that we may say that the return of the officer or the proof of service was challenged. As this is a technical matter, counsel may not well complain of a technical ruling. Had the exact point been made which is now relied upon, plaintiff might easily have cured the objection by producing the man who made the return, or by the filing of an amended return; and, unless the point was clearly and specifically made in the trial court, it should not be considered here. As this was not done, the objection is without merit.

3. Before going to the separate claims, it is perhaps well to consider plaintiff's appeal. It contends that it should have had judgment against the owner for the full amount of all of its claims, because he did not pay according to the terms of his contract, but contrary thereto; because of fraud on the part of the owner and principal contractor in attempting to build for $2,600 a house costing from $3,000 to $4,000, thus depriving subcontractors of all right to recover; and...