Pence v. Martin

SLOANE, J.

The plaintiff brought this action to foreclose a mechanic’s lien. The only question on the appeal from judgment in favor of defendants is as to whether or not plaintiff’s claim of lien was filed within the time allowed by law. The appeal is taken on the judgment-roll alone, and the findings must be presumed to be in accordance with proof presented on the trial.

According to the findings, the defendant Juliet N. Martin, owner of the real property involved, entered into a contract with W. W. Paden, whereby Paden agreed to erect an apartment house on the land of defendant Martin for the agreed price of forty-three thousand five hundred dollars, and accepted from said defendant certain mortgages and securities on the premises in question, and on other property of said defendant, for the contract price. From the negotiation and sale of these securities he was to raise the money to build the house and receive his profits. The contract was not recorded. The plaintiff Pence entered into an agreement with Paden whereby, as subcontractor, he undertook to furnish the materials and labor for the carpenter work.

[1]

The work of construction was begun, and claims on behalf of the plaintiff accrued to the amount of $425. Thereafter Paden, being unable to find a market for his securities, discontinued work under his contract for want of funds, and there was a complete cessation of all work on the building from on or about the 30th of January, 1915. Work was never resumed upon the building by the contractor Paden, or under this contract. About the middle of

[628]

October, 1915, Paden, under some sort of a settlement which is- not disclosed, returned the securities that had been delivered to him by the defendant Juliet N. Martin, and she thereupon entered into arrangements with the defendants Jones, Title Guarantee and Trust Company, and Fidelity Savings and Loan Association whereby they furnished her with money to complete the building, and on the 25th of October, work was resumed under entirely new and independent contracts. The plaintiff Pence was at no time, prior to shortly before the resumption of work, notified that he would not be permitted to carry out his subcontract with Paden, but he knew of the discontinuance of work during all this period, and was informed, between the 4th and 25th of October, that the defendant Martin had procured funds to complete her building, and that work would be resumed under a new contract, and that he, together with other subcontractors under Paden, would be given first chance to bid for the work under new contracts. The plaintiff did not avail himself of this offer. Within thirty days after the resumption of work on the building under the new contract, namely, the 16th of November, 1915, plaintiff, taking the execution of the new arrangement as a repudiation of his contract, filed his notice of lien. This was some nine months after cessation of work under the Paden contracts, and after plaintiff’s last work as subcontractor. The court declares in its findings that there was not a temporary suspension of the work on January 30, 1915, for the convenience of the owner, as claimed by appellant, but that there was a complete cessation and abandonment of such work by reason of the fact that the contractor Paden was unable to continue the same because of inability to raise funds on his securities; and on this appeal this finding is not subject to impeachment for want of evidence.