after stating the facts: It is proper to state that the record shows that the plaintiffs asked for a new trial upon “the ground that the third issue was found contrary to the weight of the evidence, in fact, found without, evidence.” But this was abandoned by counsel in this Court.

In this Court, the defendant moved to dismiss the plaintiffs’ action, as upon demurrer ore tenus, for the reason that the “complaint does not state facts sufficient to constitute a cause of action, in that it fails to allege that anything was due from the defendant to Wood, the contractor, when the lien was filed.” For this he cites the case of Turner v. Strensil, 70 California, 28, in which it is said: “A material-man is only entitled to be paid from that portion of the contract price which remains due and unpaid to the contractor by the owner when he (the material-man) files his lien, and when the complaint fails to allege that anything is due from the owner to the original contractor when plaintiffs’ lien was filed, it does not contain a statement of a cause of action.” In this case no such allegation was made, and the Court said: “It nowhere appears that the owner had not paid to the contractors, prior to the filing of the lien, all that was due to them.”

In the case before us, it is alleged that the defendant paid the contractor, after the lien was filed, ihe sum of $375, and that he also paid $500 to Wood as a consideration for the cancellation of the contract, and thus placing it beyond his power to complete his contract.

*233 These allegations were denied, and whether the defendant owed the plaintiff anything or not, was a controverted question which, though decided by the jury in the defendant’s favor, presented an issue of fact fairly raised by the complaint and answer, and the motion to dismiss cannot be allowed.

1. The plaintiffs except to the testimony of the defendant, in regard to payments made to Wood, under the contract, when the notice was served by the plaintiffs. How, otherwise, could it be determined whether the "defendant was indebted to the said Wood at the time of the said notice?” If it was competent for the defendant, as it clearly was, to prove that he was not indebted to the contractor when the lien was filed, then it was competent to prove that he had paid what he owed him up to that time. The evidence was competent, and there can be no question as to the competency of the witness.

2. The testimony of the witness Hick is objected to. The defendant had testified that he did not owe Wood a dollar after October 12tb, and had not paid him a cent. He was cross-examined as to various payments made after that time, manifestly with a view to show that they were made for or on account of Wood, and the testimony of Dick was competent to corroborate him, as tending to show that the payments were not made on any indebtedness to Wood.

3. The plaintiffs insist that — the jury having found, in response to the second issue, that the defendant had paid to Frank Wood, or his agent, under the contract, $119.84 after service of notice: and, in response to fourth issu'e, that he had paid $230 for material furnished and used in the building after said notification — they are entitled to judgment, notwi'hstanding the finding upon the third issue, that the defendant was not indebted to Wood at the time of said notice. The authorities cited by the counsel-for the appellant, do not go to that extent.

*234 In Wright v. Roberts, 50 N. Y. (Supreme Court Reports), 415, it appeared that “a sum of money had been earned, according to agreed price, in excess of all payments to Lyons, sufficient to pay the lienors.” It is true that the contract had not been fully performed, but enough had been done under it sufficient to pay the “lienors.”

In Mayer v. Mutcher, 50 New Jersey, 162, the contractor had not completed the contract, and it was held that the lien attaches not only to what may be due to the contractor at the time of the notice, but whenever the period arises when the owner could be compelled to answer to the contractor for any portion of the contract price, he must respect the notice theretofore given. It was held that, if money became due after the notice, the lien would attach, and it was said that the lien would attach if the money could be sued for and recovered. The cases cited by counsel for appellant are distinguishable from the case before us, in which, according to the verdict, nothing was due at the time of the notice, and nothing ever became due.

In Pinkston v. Young, 104 N. C., 102, it is said: “If, at the time of such notice (under The Code, §§1801, 1802), the owner or lessee of the land has not paid to the contractor the money due, or to come due, to him, or an account of the contract, and shall refuse to retain out of the amount so due so much, if there shall be so much due, as shall be due or claimed by the party having the lien, the latter may proceed to enforce his lien,” &c.

In Bradburn v. S. L. Grape and Wine Co., 67 N. Y. Rep. (Court Appeals), 215, the Court held that the defendant had a right to prove that the contractor became unable to complete the building, and that he was forced to complete it himself, and if, in consequence, he made payments to third parties, they could not be treated as admissions of indebtedness to the contractor. It may be that if, by any act of the owner, the contractor was prevented from performing his *235 contract, and the contractor would have a right to recover, either upon the contract or upon a quantum meruit from him, a material-man’s or a laborer’s lien would attach to the amount that might be so recovered, but we think that he is entitled, by virtue of his lien, to have his debt paid out of such sums as the contractor owes at the time of the filing of the notice, or might afterwards become entitled to secure under his contract, and no more.

The defendant having made payments after the notice, his Honor put the burden upon him of showing, by a preponderance of testimony, that the payments were not made under the contract with Wood. There was nothing in the charge of his Honor of which plaintiffs could complain, and there was no error in the judgment.

Judgment affirmed.