French v. Bauer

The action was brought to foreclose a mechanic’s lien filed against the premises 3467 Third Avenue, in this city.

Spoonheimer contracted with the firm of Findley & Bowman to do all the iron work required on the building and. the sidewalk, and the plaintiffs, on or about the 13th of October, 1888, contracted with Findley & Bowman to put"down all the patent light frames and tiles required by Spoonheimer’s contract, for the sum of $100. Plaintiffs performed their contract on or before the 24tb. of October, 1888. All the stone work and exterior ironwork had been fully completed before the 29th of October, 1888, and on that day the architect gave his certificate to that effect, and on the same day the defendant Bauer paid the defendant Spoonheimer the fifth instalment due.

On the 2nd of November, 1888, Spoonheimer and Findley &, Bowman had a settlement and adjustment of their matters, and on that day the former gave a check, dated November 5th, for the balance found due the latter, and they gave him a receipt in full dated on the last named day. The check thus given was cashed on the same or the following day, and paid by Spoonheimer’s bank when it was presented.

On the 3rd of November, Findley & Bowman made an assignment, and on the 7th of November one of the plaintiffs had an interview with Mr. Bauer and Mr. Spoonheimer and asked payment of his claim; he was told that Findley & Bowman had been paid in full, and also that they had made an assignment, as they had learned from the papers. .On the 9th of the same month plaintiffs filed the lien which this action is brought to foreclose. At that time the last instalment of $1,000 had not been paid to .Spoonheimer, nor was it then due. Notice of the lien was also served on Bauer.

All the foregoing facts appeared on the trial, and the attention of the jury was sharply called by the charge of the

Appellants contend that, notwithstanding these facts, inasmuch as there still remained $1,000 of the contract price to be paid by Bauer to Spoonheimer for work not then completed, they should have been paid out of that, claiming that the contract price is a common fund out of which all liens should be paid.

But, by the terms of the contract between the defendants, Bauer was required to make the fifth payment when the cellar was concreted and the sidewalk and all exterior iron and stonework completed. This was all done on the 29th of October, and as no lien had then been filed by plaintiffs, Bauer paid, as in duty bound, the whole amount of that instalment" to Spoonheimer. And the latter, as the jury have found, paid Findley & Bowman in good faith all that remained due them on or before the 5th of November. The plaintiffs did not file their lien until the 9th of that month, and of course acquired no lien before that time. When they did file their notice of lien it could only attach to what was due or to become due to Findley & Bowman (Lumbard v. Syracuse, etc., R. R. Co., 55 N. Y. 491 ), and there was nothing then due or to become due them, so nothing was attached. There was no privity of contract between the plaintiffs and the defendant Spoonheimer ; the former contracted with Findley & Bowman, and if plaintiffs did not rely upon the responsibility of that firm, but upon the lien given by the statute, it was their duty to have examined not only Findley & Bowman’s contract but also the contract between the defendants to ascertain the terms of payment, and then they should have filed their lien in time to have anticipated the fifth payment.