Shope v. Mitchell

As between the plaintiff and defendants Mitchell and Thornburg, we are entirely satisfied with the judgment of the trial court. A large part of the $229.44 found due the plaintiff is. admitted, and the evidence supports the further finding as to the amount due. The plaintiff contracted to put up a building for the defendants Mitchell and Thornburg, furnishing all material and labor therefor, at the agreed price of $4,800. T. J. Gilbert and the McColl Lumber Company furnished material which went into the building, and now make the claim that it was furnished under a contract with said Mitchell and Thornburg, and the only question as between these parties is whether such contracts are sufficiently proven to sustain the judgment. We think they are. Both Gilbert and D. D. McColl testify to an agreement on the part of these defendants to» *638pay for all material they should furnish, and, in addition thereto, the plaintiff testified that the material furnished by the MeColl Lumber Company beyond the' amount of the original estimate all went into the extras, which were not covered by the contract. The witnesses were before the court, and, giving to this fact the weight to which it is entitled, in connection with the evidence before us., we' think the judgment is right as to the MeColl Lumber Company and T. J. Gilbert. The intervener, Eller, is a subcontractor, who furnished material the 1-ast of June or the first of July, and who served no notice of -such fact upon the defendants until in October following, at which time the plaintiff had been paid the full contract price for his job, and in strict accordance therewith. To entitle a subcontractor to a lien, he must follow the statute. Lounsbury v. Railroad Co., 49 Iowa, 255. But in this case it was found by the trial court that the plaintiff was entitled to- $229 for extras in addition to his contract price, and his lien was established therefor. Wetmore v. Marsh, 81 Iowa, 677. Section 3094 of the Code provides for the filing of a statement and the giving of a notice by a subcontractor after the 30 days has expired, and that his lien shall then be enforced to the extent of the owner’s indebtedness to- the principal contractor at that time. Robinson v. Insurance Co., 55 Iowa, 489. Under this statute we are of the opinion that the intervener is entitled to a lien for the amount of his claim, and that the judgment in favor of the plaintiff and against the defendants should be modified to the extent of deducting therefrom the amount found due the intervener.

With this modification, the judgments are affirmed.— Modified and affirmed.