Wilson v. Nugent

THE COURT.

Action to recover eight hundred and thirty-six dollars. Judgment for defendant. Motion for a new trial denied. This appeal is hy the plaintiff from the judgment and order. On May 16, 1895, one De Gear entered into a written contract with defendant to roof St. Rose’s church for three thousand three hundred and forty-four dollars. The contract was in the usual form and provided that twenty-five per cent, being the final payment, should be retained by defendant for thirty-five days after the completion of the contract. March 7, 1896, the contract was completed, and defendant made all the payments as he had agreed to do, except the twenty-five per cent (eight hundred and thirty-six dollars) which he retained under the terms of the contract for the payment of any claims that might be valid liens against said building.

On March 28, 1896, seven mechanics’ liens were filed against said church, aggregating about the amount still in the hands

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of defendant. On April 11, 1896, said De Gear filed a petition in insolvency; the plaintiff was in due course elected assignee of said insolvent, and on April

24,

1896, an assignment of all the estate of said De Gear was made to plaintiff. After the said plaintiff had qualified as assignee and prior to June 3, 1896, he notified defendant in writing of his election and qualification as assignee, and of his claim to the eight hundred and thirty-six dollars, and forbade its payment to anyone else other than plaintiff. On June 3, 1896, after defendant had knowledge of all these facts and of the claim of plaintiff to said money, and without any order of court, or any judgment as to the validity of any of said alleged liens, he paid them all, amounting with costs to more than the eight hundred and thirty-six dollars. It was admitted at the trial that unless tne defendant was released from liability to plaintiff by reason of the payment of the said alleged liens that the eight hundred and thirty-six dollars was due and unpaid from the defendant to the plaintiff. At the time of the qualification of the plaintiff as assignee the defendant was indebted to plaintiff as such assignee and legal representative of De Gear in said sum of eight hundred and thirty-six dollars, unless there were valid and existing liens against said fund or against the property of defendant, and in. order to satisfy which defendant in law had the right to use said fund. Defendant did not owe the alleged lien claimants, as he had made no contract with them. The provisions of the statute authorizing the owner to retain the twenty-five per cent in order to pay off and discharge liens was designed both for the protection of the owner and of laborers, materialmen and holders of valid liens. Subcontractors, laborers, and material-men may look to the contractor alone, or if they have any doubt as to his solvency, they may avail themselves of the statutory provisions as to filing and recording liens. If such liens are filed, the owner has the right to retain the amount in his hands for his own protection, for the purpose of paying off and discharging such liens as may be valid and to charge the amount so paid to the contractor. The defendant knew, at the time of paying this fund to the alleged lienholders, of the claim of plaintiff. While he had the right-to use the fund in accordance with law to protect his property from valid liens, he could