Rosenbaum v. Carlisle

• Decision Date: 11 March 1901
• Citation: 78 Miss. 882,29 So. 517
• Court: Mississippi Supreme Court
• Parties: MOSES ROSENBAUM v. DAVID H. CARLISLE

29 So. 517

78 Miss. 882

MOSES ROSENBAUM v. DAVID H. CARLISLE

Supreme Court of Mississippi

March 11, 1901

FROM the circuit court of Lauderdale county. HON. GREEN B HUDDLESTON, Judge.

Carlisle the appellee, was plaintiff, and Rosenbaum, appellant defendant, in the court below. The opinion states the controlling facts of the case.

Judgment affirmed.

Miller & Baskin, for appellant.

Our contention is that the material man, by virtue of § 2714, has no lien upon his lumber, but merely has a right to be subrogated to the rights of the contractors and to recover from the owner that which is due from him to the contractors--in other words, to require the owner to pay whatever may be due the contractors to him, the material man instead of to the contractors. Van Clief v. Van Vechten, 130 N.Y. 577 (29 N.E. 1017); Beardsley v. Cook, 143 N.Y. 150 (38 N.E. 109). The material man can only recover, as against the owner, when the contractors could recover against him; if the contractors could not sue and recover against the owner, then the material man cannot do so. In this case the right of the contractors was measured by the terms of the contract of November 2, 1898, and March 23, 1899. Before the contractors could recover under the contract of November 2, 1898, they would have to show that they completed the contract by building the two houses for the appellee, Moses Rosenbaum, as required by said contract. This they did not do, but abandoned the same, and hence gave up all rights under said contract.

The testimony shows that up to the time of the contract of March 23, 1899, Rosenbaum had paid to Wheeler & Watts, contractors, all that was due them. We contend, however, that appellee, Carlisle, could not recover any sum whatever from Rosenbaum until Rosenbaum had his contract carried out, to wit: the completion of the two houses for the sum of $ 3,000. Wheeler & Watts had a right to the $ 3,000 when the houses were completed, and not before, and Carlisle had a right to recover whatever might be due by Rosenbaum to Wheeler & Watts when he, Rosenbaum, received his houses completed as the contract required. It would not do to say that Rosenbaum must be compelled to accept his houses in an unfinished condition, in which condition they would be of no use to him, and then to pay all of Wheeler & Watts' debts that they had contracted for lumber that was in the houses or on the grounds to be put in the houses. Rosenbaum was in nowise responsible, by writing or otherwise, for the lumber that Wheeler & Watts bought to put into said houses; said material was sold alone upon the credit of Wheeler & Watts, and the creditor therefore took the risk of getting his money for the lumber that he let Wheeler & Watts have. Carlisle sold to Wheeler & Watts his lumber on a credit. Rosenbaum was in nowise responsible for said lumber, except to the extent of any amount that might be due to Wheeler & Watts for building his houses, and, as they never built them, Rosenbaum was never liable to this extent.

We submit that if Wheeler & Watts had bought Carlisle's lumber and not paid for it, still they would have a right to sell it to Rosenbaum, or any one else, and Rosenbaum would have a right to buy it without having to pay the creditor of Wheeler & Watts for the same. In other words, Carlisle sold the lumber to Wheeler & Watts, and we know of no reason why Wheeler & Watts could not sell it to Rosenbaum, even though Wheeler & Watts had not paid Carlisle for said lumber. Selleck v. Pollock, 69 Miss. 877.

Another theory advocated by the appellee, Carlisle, in the court below was that Wheeler & Watts had a right to recover on an implied assumpsit for the amount of the work and the amount of the material they had when they abandoned the contract and that Rosenbaum owed them upon this idea, and, as they, Wheeler & Watts, would have a right to recover the amount that their work was really worth, and also the amount that the labor was really worth, and both of which was more than they, the said Wheeler & Watts, had contracted for, that then Carlisle could recover. This, we submit, is untenable, because Wheeler & Watts could not recover on an implied contract, or upon a quantum meruit, because of the existence of the special contract of November 2, 1898; neither could Carlisle recover upon a quantum mercuit in behalf of Wheeler & Watts, because of the express...