Dunlop v. Kennedy

HAYNES, C. Consolidated actions to enforce liens of materialmen. Plaintiffs had judgment, and defendants Alice Kennedy and John F. Kennedy, the owners, appeal from the judgment and an order refusing a new trial. On September 26, 1889, Alice Kennedy, wife of said John F. Kennedy, entered into a contract in writing with Gray & Stover, of which firm the defendant Stover is the surviving partner, by which they were to erect for her a three-story building -(flats), and to furnish all materials and labor therefor, together with certain cement sidewalks and other walks on the same lot, and “also sidewalk in front of lot adjoining, running forty-two feet westerly, and all walkways and yard in connection with said lot.” The contract did not apportion the price of the work upon each lot, but the contractors were to be paid $6,600 “at the times and in the manner following, to wit: Twenty-five per cent of the contract sum to remain unpaid until thirty-five days from and after completion of said building, and its acceptance by the within named architect. The remaining amount to be paid in partial payments in amount equal to seventy-five per cent of the value of the work done and materials furnished at the time of such payments.” The contract was not filed in the recorder’s office, but a memorandum of it was filed before the commencement of the work. Gray & Stover prosecuted the work until January 19, 1890, when Gray died, and Stover continued the work until February 18, 1890, when he abandoned the work before completion; and the owners, after due notice to the surviving contractor, continued the work, and completed it March 17, 1890. At the time of the contract there was a stable upon the lot, for which the contractors were to pay $150, and remove it. On [199]December 21st, Kennedy paid the contractors $3,000 in cash; and on January 14, 1890, the contractors receipted for $4,000, which included the said payment of $3,000, and $1,000 for lumber furnished under the following circumstances: John F. Kennedy was a member of the Kennedy-Shaw Lumber Company, and he agreed with the contractors to furnish the lumber, and it was furnished to the contractors to the above amount, and used in the building, the lumber company charging it to Kennedy, and that amount was included in the receipt as paid upon the contract. At the time Stover abandoned the work there was due from the contractors to laborers $285, which amount was at once paid by the owners to the laborers. There was also due from the contractors to materialmen at the date of abandonment, including the amount due the plaintiffs in the consolidated cases, $2,656.74. The actual cost of completing the work in the manner the contract required was $1,255.89. After completion, the owners estimated the balance of the contract price remaining in their hands at $890.86, and offered to the respondents Towle & Broad-well, and to respondent Dunlop, and the other materialmen, their several pro rata shares of said sum. All except Towle & Broadwell and Dunlop accepted the offer, and received the payment in satisfaction of their several claims. Dunlop and Towle & Broadwell refused to accept the offer. Those accepting the settlement were five in number, and their claims aggregated $998.74. Whether the offer was made to respondents before their liens were filed does not appear. The others did not file liens. The court found due to respondent Dunlop $585, and to Towle & Broadwell $1,073, besides costs and attorneys’ fees to each, and that they were entitled to liens for those amounts. Other findings necessary to be noticed are that John F. Kennedy was and is the owner in fee of the premises, and that Mrs. Kennedy is the reputed owner; that no memorandum of the contract was ever filed, except that set out in the findings; that the defendants did not comply with the terms of the contract as to payments, but that on December 21, 1889, there was paid $3,000 in cash, and on January 14, 1890, a receipt was given for that sum, and $1000 for the lumber hereinbefore mentioned and that no cash payments were made, except said sum of $3,000; and, as a conclusion of law, that the materials furnished by plaintiffs were furnished