Henley v. Wadsworth
Before: Sprague
Synopsis
Lien of Sub-Contractors and Material Men under Act of 1862.—Upon compliance with the terms of the statute, the right of a sub-contractor, laborer or material man to a lien must be determined and controlled by the terms of the original contract between the owner and the original contractor, of the existence of which contract, and of its terms, said persons are presumed to have notice. Idem.—In the absence of fraud or misrepresentation by the owner, this presumption of full knowledge of the terms of the original contract is conclusive against all sub-contractors, laborers and material men, and they are bound by the terms of the original contract, so far as any claim upon the owner, or right of lien upon his premises under the statute, are concerned.
Idem.—E. agreed to furnish all the work and materials, and to erect a building for W., for the sum of $12,500, payable in instalments, as the work progressed, except the sum of $3,050, which was to be paid within thirty days after the completion and acceptance of the building. After proceeding with the work for some time, and receiving from W. the sum of $10,854, which was $1,404 more than the payments stipulated to be paid prior to the completion of the building, E. abandoned the undertaking, when W. finished the building, at an additional expense of $4,698. A month after the abandonment of F., the plaintiff, a sub-contractor, and others whom he represents, gave notice to W. of them claims against F., as mechanics and material men, and, by suit, sought for the establishment of a lien against the building for the same. Held, That the payment in excess, of $1,404, by W. to F., was not to the prejudice of the plaintiff, and that the facts of the case created no lien in favor of the plaintiff, upon the property of W.
Sprague, J., delivered the opinion of the Court: This is an action by a sub-contractor against the employer and original contractor, to recover the amount due plaintiff as sub-contractor and assignee of other claims due other mechanics and material men from the original contractor, and to enforce the amount so due plaintiff, as a lien upon the premises and superstructure thereon erected, under the Mechanics’ Lien Law of April 26, 1862.
On the 26th day of May, 1866, the defendant, T. L. Wads-worth, of the first part, and defendant, Julius Feidler, of the second part, entered into an agreement in writing for the construction of a three-story brick building, with basement, by the party of the second part, for the party of the first part, upon a certain described lot belonging to the party of the first part, in the City of Sacramento, which agreement or contract, in substance, is as follows :
The party of the second part stipulates and agrees to erect and finish a three-story and basement brick building on part of Lot 4, on the north side of K street, between First and Second streets, in the City of Sacramento, for the said party of the first part, the work to be commenced immediately, prosecuted with all due diligence, and completed on or before the 31st day of August, 1866, agreeable to drawings and specifications made by A. A. Bennett, architect, signed by the parties and annexed to the agreement, said building to be finished by the party of the second part within the time aforesaid, to the satisfaction and under the direction of said architect; said party of the second part to furnish all proper and sufficient materials for completing and finishing all the mason work, stone work, iron work, plaster work, carpenter work, hardware, glazing, plumbing work, gas pipes, painting, roofing, and other work of said building mentioned in the specifications, for the sum of $12,500, in gold coin of the United States, which the party of the first part agreed to pay as follows, to wit:
[358]jFirst payment—$2,000, when the brick work is up to the high grade, and the timbers laid.
Second payment—$2,000, when the brick walls are up to the second story, and the timbers laid.
Third payment—$2,000, when the walls are up to the tnird story, ready for the roof.
Fourth payment—$2,000, when all the floors are laid in the ’ building.
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