McMillan v. Seneca Lake Grape & Wine Co.

The case contains several exceptions besides those insisted on by the appellant’s counsel. Upon examination, we think those omitted were properly waived on the argument, and we shall not discuss them.

The objection that the notice of lien did not accurately specify the amount of the claim, we think was properly overruled. An amount was stated, and the addition of the words, “ with interest,” . did not vitiate the notice, because, if need be, they may be rejected *15as surplusage. It was proper to show that the date, twenty-first January, in the schedule annexed to the complaint, was inserted therein by a clerical mistake which occurred in transcribing it from another paper, and'it was quite immaterial whether the latter was an original paper or a copy. The mistake might have occurred in transcribing from the one as well as the other.

When the plaintiff; rested, enough had been shown to establish, prima facie, that the defendant was indebted in some amount to Coe, the contractor. The operation of the lien law is to transfer to the lienor the contractor’s claim against the owner pro tanto. It is a form of equitable subrogation. The plaintiff having proved the contract by which the defendant agreed to pay eighty per cent of the value of the work as it progressed, and that the contractor had performed it in part, the indebtedness of the defendant to him appeared, and it was incumbent on the defendant to prove that it had been discharged. (Phil. Mech. Lien, § 63.) The work was in progress under the contract when the suit was commenced, and twenty per cent of the value of it would become due thereafter. The plaintiff was clearly entitled to intercept the payment of a part of that. There was no error, therefore, in denying the motion for a nonsuit.

In the course of the trial, the defendant offered to prove that, on the very day the lien was filed, the contractor became unable to complete the building, or to advance the necessary funds to purchase materials therefor, and to pay laborers thereon, and that the defendant, in order to complete the building, was forced to and did purchase materials therefor and pay laborers thereon, to an amount exceeding the price agreed to be paid in the contract. This evidence was properly rejected, for the reason that the offer did not embrace the proposition that the contract had been abandoned. Won constat the acts of the defendant were done under an agreement with the contractor, that the sums so expended should be treated as payments under the contract. Indeed, such appears to have been the fact. If, when a notice of lien is filed in a case like this, the contractor has been folly paid for all work done prior to that time, and, for any cause, the contract is mutually abandoned, the lien will be defeated, for nothing can thereafter become due to the contractor. The statute expressly limits the *16lien to the sum which the contract renders the owner liable to pay. But, while the contract remains in force, no payments to the contractor on account thereof, after the notice of lien has been 'filed, can affect the lien. It is immaterial whether such payments were made in the mode provided by the contract, or in a substituted form, for the statute gives the lienor his lien for the value of his labor or materials, subject only to the limitation before mentioned. The plain operation of the statute is to entitle the lienor to so much of the claim of the contractor ag’ainst the owner, as will be sufficient to satisfy his demand against the contractor. In other words, the lienor succeeds to the right of the contractor to receive the payments, and a payment to the contractor, after the lienor has filed his notice of lien, can in 'no wise affect or impair the rights of the latter. The statute places such payments on. the footing of a payment to the wrong person. (Carman v. McIncrow, 3 Kern., 70.) It may be added, that the answer does not set up that the contract had been abandoned.

These payments not being available to defeat the lien, it remained; and if the contractor could have recovered them in case they had not been made, the plaintiff may do so notwithstanding they were made. The fact that they were made under the contract, is satisfactory evidence, in the absence of proof of fraud or mistake, that they were due. The referee has so found in substance, and it is immaterial to inquire whether other propositions embraced in his findings are erroneous or not.

The judgment must be affirmed.

Judgment affirmed, with costs.