delivered the opinion of the Court:

It is objected here at the outset on behalf of the appellee, that this case should have been brought up on bill of exceptions, and that there is no such bill in the record. We do not deem it necessary to decide this question, inasmuch as we think that the case can be more satisfactorily disposed of on its merits.

It is conceded in the agreed statement of facts that the appellee paid more for his house than he had contracted to pay. Therefore, if he should be held liable to the appellants in this suit, it would be practically the requirement of double payment by him to the extent of this claim. This, however, is no sufficient objection to the enforcement of the claim, if the appellee has made himself legally liable for it; but it is a sufficient reason to induce a careful examination of the circumstances of the case.

The order given by the contractor Baldwin, which is the foundation of the claim, requested the payment of $400 to the appellants, when the last (or ninth) payment on account of the house became due to him (Baldwin). Johnson accepted this order conditionally. Had his acceptance been unconditional, it is quite plain that if the ninth or last payment on account of the house never became due to Baldwin, the liability of Johnson on the acceptance would never have attached. By his conditional acceptance the appellee expressly made his liability dependent on the performance by Baldwin of all the conditions of the contract between the latter and himself. Upon the performance of those conditions, the right of Baldwin to the ninth and last payment depended. If those conditions failed, the payment could not be earned, and the acceptance never could become a liability. Now, the conditions did fail, and the ninth and last payment never was earned by Baldwin.

*310When Baldwin abandoned the work, and the appellee, in pursuance of the express terms of their contract, assumed charge and control of it in his own right on January 3,1883, the eighth instalment of the contract money had not become due and payable; and presumably the work for which that instalment was to be paid had not been completed. It is not apparent, therefore, that he ever did or could have done any work or provided any material for which he could have become entitled to the whole or to any portion of the ninth and last payment. Under the terms of his contract, when he abandoned the work, all claim by him ceased and was at an end; and he could not justly or equitably have advanced any claim, when he had done nothing for which to merit payment. The appellants took the risk of the completion of the work by the contractor, and when the contractor failed them before any portion of the money was earned out of which their claim was to be paid, their claim, so far as that fund was concerned, necessarily failed with him. The fund was never created, upon the creation of which alone the acceptance was to be paid. Consequently it seems to be very plain that the liability of the acceptor never accrued.

It is argued, however, that the fund was in fact created, and, perhaps unintentionally, misapplied by the appellee. For complaint is made, that, if the appellee had not paid to Baldwin the sum of $500, which he paid to him on December 29, 1882, on account of the eighth payment, in advance of the date of the maturity of that instalment, which was January 15, 1883, and had retained that sum, he would have had, on the completion of the work, enough to satisfy the claim of the appellants. But the appellants had no interest in this eighth payment. It was no concern of theirs when or to whom the appellee paid it. If it be assumed that they had any interest at all in that matter, it was only that the instalment should be paid, or at least earned — and if earned, it is not apparent why it should not have been *311paid; for until that instalment was paid or earned, no possible right could arise to the ninth payment, in which the appellants were interested, and from which their claim was to be paid.

Provision was made in the building contract between Johnson and Baldwin, that, in the event of the abandonment of the work by the latter and its assumption and completion by the appellee as the owner of the property, if there remained any balance of money in the hands of the appellee “ in respect of work done during the time of the defaulting contractor,” such balance should belong to the persons legally representing the contractor. This provision, construed most favorably for the appellants, means that the residue of money, if any, in the hands of the appellee must be paid to the subcontractors, so far as their claims require this application of the fund. If we disallow the amount paid by him for arrears of pay to the laborers ($53.30), the appellee had in his hands at the time of the completion of the work only $75.08. For when he subsequently paid Shedd $424.25 in satisfaction of the claim of the latter, there was an overpayment by him of $349.17 upon the whole amount of the contract. The payment to Shedd over and above the sum of $75.08, so far as the appellants are concerned, was a voluntary payment on the part of the appellee which did not affect their rights in any manner. And so the controversy at last is narrowed down to the question, whether the sum of $75.08, the residue in his hands, should have been paid by the appellee to Shedd or to the appellants.

We think he was justified in paying it to Shedd. Shedd had a lien which antedated the ninth payment that was to be made to Baldwin. Under the contract between Johnson and Baldwin, that ninth payment never could become payable to Baldwin as long as Shedd’s lien was outstanding. The architect’s certificate as a prerequisite to the payment we regard as of no consequence. It might have been dispensed with. It was rendered unnecessary in this case. Its *312purpose was to assure the owner of the property that there were no liens outstanding against the property. If the owner had notice otherwise of liens outstanding, the certificate of the architect was unnecessary for the purpose. The purpose of the certificate and of the notice which it was to give, was to enable the owner to protect himself against these liens, to withhold the money due until they were discharged, or to pay them out of that money. The statutory lien of Shedd was evidently superior to the rights of Baldwin and his assignees in the ninth payment, and the appellee was undoubtedly entitled to withhold that instalment until the lien was discharged, or to discharge it himself from the money in his hands. Not until it was discharged could the acceptance become due and payable.

We are entirely satisfied, therefore, that the decision of the court below was right, and should be affirmed, with costs; and it is so ordered.'