Tice v. Moore

• Citation: 82 Conn. 244,73 A. 133
• Court: Supreme Court of Connecticut
• Decision Date: 10 June 1909
• Parties: TICE v. MOORE et al.

73 A. 133

82 Conn. 244

TICE

v. MOORE et al.

Supreme Court of Errors of Connecticut.

June 10, 1909.

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by Magdalena A. Tice against Milton E. Moore and others to quiet title and determine the validity and amount of certain liens on plaintiff's real estate. From a judgment sustaining some of the liens and disallowing others, plaintiff and certain of the lienors appeal. Reversed and remanded.

The plaintiff on June 5, 1907, entered into a written contract with Moore to build a house upon a lot then owned by her in New Haven. At the time the contract was signed, she gave him two notes amounting to $3,915, the contract price for the house. One of the notes was for $3,400, the other for $545, each payable on demand to his order, the larger note being at 5 per cent. interest, and the smaller at 6 per cent., and each secured by a mortgage on the lot, that securing the larger note being the second mortgage. The contract recited that these two mortgages were given in consideration of the house being built by Moore and to compensate him therefor. The contract was the only consideration for the notes. Moore then contracted with different parties for the mason, carpenter, and plumbing work upon the house and for the lumber required in its construction. These parties began to furnish labor and materials in constructing the building and are parties to this action as claimants for mechanics' liens. After this work was begun, and before August 9, 1907, the W. T. Fields Company, at the request of Moore, agreed with him to make a loan of $3,000 at 6 per cent. to be secured by a first mortgage upon the plaintiff's property when the building should be completed; the money to be advanced as the work progressed, $1,000 when the house was roofed in, $1,000 when it was plastered, and $1,000 when it was fully completed. Moore caused to be prepared a note for $3,000 at 6 per cent. payable to the W. T. Fields Company and a mortgage upon the plaintiff's lot to secure the same, another note to his own order on demand for $955 at 5 per cent., with a second mortgage on the plaintiff's lot to secure it, and releases of the mortgages which had been given him to secure the first two notes. He then Informed the plaintiff that the orginal papers were wrong and would have to be changed, and that he had to have 6 per cent. On August 14, 1907, she at his request went to the offices of the conveyancers whom he had employed to prepare the papers and there executed the new notes and mortgages, and Moore and the defendant Hall, who had become the owner of the $545 note, executed the releases of the former mortgages, and the conveyancers on August 14th caused the papers to be recorded in the proper order. The house was at this time roofed in, and the first payment from the W. T. Fields Company was due, and they paid $940 to the conveyancers, retaining, with the knowledge and consent of the plaintiff, $60 as commission. The conveyancers by order of Moore paid Hall the amount due upon the note for $545, paid $18 for insurance, and $18.10 for the expense of the preparation and recording of the conveyances, and the balance to Moore. The plaintiff had knowledge of these payments, and at the time was informed that the Fields Company would pay $1,000 more when the house was plastered, and another $1,000 when the house was completed, and assented to the arrangement. The Fields Company on August 23d, without the knowledge of the plaintiff, paid Moore $100. She understood and believed that she would not become liable on the note for $945 unless and until the house was completed, and Moore knew this. At the time of this transaction, the parties all knew that material and labor was being furnished in the construction of the house, but none except Moore knew by whom. On August 31st Moore transferred for a valuable consideration the note for $945, and assigned the mortgage securing the same to the defendant Hall. The court found that Hall took the mortgage knowing that the house was not completed, and that the plaintiff had received no consideration for the note except the contract with Moore, and knew of the equities existing between Moore and the other parties, and was not an innocent purchaser for value. On or about September 19, 1907, Moore abandoned his contract, left town, and has not been heard from since. At or about the same time, the subcontractors abandoned the work, gave notice of their liens, and filed liens on the plaintiff's property. Moore's failure to complete his contract was not due to the fault of the plaintiff. There is nothing due to him from her. The amount which would have been required to complete the house at the tune of its abandonment would not have been less than $2,200. The cost and value of the work and materials which have gone into it is $1,854.65. All the defendants filed answers claiming liens. The W. T. Fields Company and Hall by virtue of mortgages, and the subcontractors for their work and materials as mechanics and materialmen, and asked for the foreclosure of the same. The court held: That the subcontractors had liens to the full amount of the labor and materials furnished by them in the construction of the building to the time when they abandoned it; that their liens had priority over the mortgage of the W. T. Fields Company; that there was due to the W. T. Fields Company upon their mortgage $1,000 only; and that nothing was due to the defendant Hall upon the mortgage for $945.

Ward Church and Charles F. Clarke, for appellant Magdalena A. Tice.

George E. Hall, Ernest L. Isbell, and John R. Booth, for appellant George E. Hall.

Talcott H. Russell and George S. McLaren, for appellant W. T. Fields Company.

Charles S. Hamilton, J. Birney Tuttle, and Charles A. Capen, for appellees.

THAYER, J. (after stating the facts as above). The principal questions in this case are whether the subcontractors, who claim liens upon the plaintiff's real estate for labor and materials, furnished under contracts with the original contractor, in the construction of her building, are entitled to such liens, and, if so, whether those liens have priority over...