Hooper v. Fletcher

McFARLAND, J.

These are consolidated cases brought to foreclose mechanics’ liens against a house and lot of land on which it stands, owned by the defendant Henry Simas. Judgment was rendered for plaintiffs and certain defendants and cross-claimants, but afterwards a motion of defendant Simas for a new trial was granted, and from the order granting the new trial certain parties have appealed.

Simas, the owner of the land, entered into a written contract with the defendant Fletcher for the construction of the house in question for $2,050, payable in four equal installments. The appellants are persons who furnished labor and materials for Fletcher. Simas made the first two payments,

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but retained the last two, amounting to $1,025, and this last-named sum was the only amount in which he was liable to the lienholders, provided the said contract with the original contractor Fletcher was a valid one under the Mechanic’s Lien Law. The contract, in form and substance, was in compliance with the law; but it was averred in the complaints that it was void because it had not been recorded—in which event the lienholders would be entitled as against Simas to the full amounts of their liens, which greatly exceeded the said.$1,025. Simas answered denying that the contract had not been recorded, and averring that it had been so recorded and was a valid contract. This was the only issue he made in his answer; he admitted that he had the said $1,025 in his hands, averred his readiness to apply it to the payments of the liens, and that he had paid it into court; and asked the court to determine the shares of each lienholder in the fund, and that his property be released from-the liens. He had not then, in fact, paid the money into court as averred, but he did so before the trial. The court found in his favor as to the issue of the validity of the contract with Fletcher, that it had been duly recorded and was a valid lien, and that “the amount of the contract price that is liable to the liens and claims of plaintiffs and defendants who are cross-complainants herein is the sum of . . . $1,025, and the said property is subject to said liens for said sum. ’ ’ But the court found in finding XII “that said defendant Henry Simas answered to the complaints of plaintiffs and cross-complaints of defendants herein, and participated in the trial herein and entered into a contest in favor of certain defendants and lien claimants, and against certain other defendants and lien claimants, and generally contested as to the disposition of said fund so deposited, and delayed and harassed plaintiffs and defendants, who were lien claimants in the collection of their claims out of said fund. ’ ’ And the court decreed that in addition to the said balance of $1,025 unpaid on the contract price, there should also be a lien on the said premises of Simas for a large amount of attorneys’ fees, amounting to five hundred dollars, and also interest on the $1,025 from January 30, 1900, which was the thirty-fifth day after the completion of the building, —and judgment was so entered. Defendant Simas moved for a new new trial on various statutory grounds, and, among