Blyth v. Robinson

De Haven, J. Appeal taken by the plaintiffs from a judgment in favor of the defendant. The only question arising upon the record before us is this: Do the findings of the court, read in connection with the facts admitted by the pleadings, sustain the judgment? The facts shown by the record are these: The defendant entered into a written agreement with one Houser for the alteration and repair of a certain house belonging to the defendant. The contract price of this work was $4,600, the said Houser to do all the work and furnish at his own expense all the materials used in the alteration and repair of such building, and deliver the same to the defendant free from liens on account of labor or materials. The contract price was to be paid in installments, three during the progress of the work, and the last one of $1,300, thirty-five days after the building was completed. Accompanying the contract was a bond in the sum of $4,000, executed to defendant by the contractor, Houser, as principal, and the plaintiffs as sureties, “ guaranteeing the performance of all the conditions of said contract on the part of the said Houser, and, among other things, that said house should be delivered to the defendant free from all liens that might arise from or be filed against said building on account of material or labor furnished by said Houser, and used in or about said structure.”

The plans and specifications forming a part of the contract for the alteration and repair of defendant’s building were not filed in the office of the county recorder.

The plaintiffs are lumber dealers, and they sold and delivered to the contractor, Houser, lumber of the value of $1,036, to be used by him in the alteration and repair of defendant’s building, and for which sum they duly filed their claim of lien against said building.

[241]Upon the completion of Houser’s contract there remained unpaid to him only the last installment provided for by the contract, $1,300, and there were filed against the defendant’s building liens which, together with the lien of plaintiffs, amounted to the sum of $2,360, and the contractor was wholly insolvent. The defendant paid the other liens upon the suggestion of plaintiffs, and after he had done so was informed by them of their claim and lien for $1,036. In respect to this the court finds that “ plaintiffs then offered defendant to take his promissory note for the sum of nine hundred ($900) dollars, and cancel said lien, which offer defendant accepted, and said .lien for ten hundred and twenty-six ($1,026) dollars was accordingly canceled.” This action was brought by plaintiffs to recover the amount due upon the note referred to in the finding just quoted. The defendant in his answer pleaded a want of consideration for the note, growing out of the foregoing facts, and further alleged that he had been damaged by reason of the failure of the contractor to pay and discharge the lien of plaintiffs, in the sum of $925, the amount sued for, and that under the terms of the bond above mentioned he was entitled to recover such damages by way of setoff or counterclaim to plaintiffs’ action.