Wickham Bros. v. Monroe
| Decision Date | 19 January 1894 |
| Parties | WICKHAM BROS., Appellants, v. MARY J. MONROE, Administratrix, et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. H. E. DEEMER, Judge.
ACTION in equity to recover an amount due for labor and material furnished for the erection of a dwelling house, and to establish a mechanic's lien. There was a hearing on the merits, and a judgment in favor of the plaintiffs for the amount due, but their right to a lien therefor was denied. The plaintiffs appeal.
Affirmed.
Harl & McCabe, for appellants.
Stillman & Stillman, for appellee S. A. Stillman.
The agreement for the construction of the building in question was entered into between the appellee Mrs. Stillman as owner and one George S. Monroe as contractor, and provided for the payment of six thousand, nine hundred and fifty dollars for the building completed. The plaintiffs claim that, as subcontractors of Monroe, they furnished labor and material for the construction of the building of the value of one thousand, one hundred and ninety dollars, which, with interest, is due and unpaid, and for which a mechanic's lien is asked. The appellee Mrs. Stillman claims that much of the material and labor used in constructing the building was inferior to that contemplated by the agreement, that the building is unfinished, and that it will cost one thousand dollars to complete it; that she has already paid five thousand, six hundred dollars on account of her agreement with Monroe; that there are liens superior to the claim of the plaintiffs, which will exhaust what there is, if anything, due under the agreement; and that the plaintiffs are not entitled to a lien on the building. Monroe having died, the administratrix of his estate is made a party defendant. The district court rendered judgment against her and in favor of the plaintiffs, for the amount of their claim, but refused to establish a lien therefor as against the building in question on the ground that no sufficient legal notice of the filing of the statement for a lien was served on Mrs. Stillman within thirty days from the date of the completion of the contract, and on the additional ground that, when the notice was served, the amount she had paid, and for which she was liable, was as great as the amount due under her agreement.
I. The last item of the claim of the plaintiff was furnished on the eighteenth day of December, 1889. On the sixth day of the next month they filed, in the proper office a statement for a mechanic's lien, and on the next day served on Burke & Hewitt a notice in writing of the filing of the statement. The notice was directed to Mrs. Stillman, and was served on Burke & Hewitt as her "agents and attorneys." It is claimed that they were not her agents, within the meaning of the statute which provides for the service of such a notice upon the "owner, his agent or trustee." The provisions of the statute in regard to such notice are designed to enable the subcontractor to preserve his lien as against the owner, and to protect the latter from the payment of more than the contract price. Sec. 7, chap. 100, of Acts of the Sixteenth General Assembly; Cutler v. McCormick, 48 Iowa 406. If the service is made upon the person who is intrusted with the business of adjusting the claims of the contractor and subcontractor, it is made upon an agent of the owner, within the meaning of the statute. There is some claim that Burke & Hewitt were the attorneys for Mrs. Stillman only for special purposes, and that they were not her agents for the purposes of receiving notice of mechanics' liens. Mrs. Stillman went to Michigan early in January, and left with Burke & Hewitt, for settlement, her business with Monroe and his subcontractors. They were empowered to make settlements for...
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