oFb.15 APPEAL from the judgment of the Supreme Court of Alberta (1), reversing the judgment of Beck J. at the trial, and maintaining the plaintiffs' action with costs.
The plaintiff company brought the action to recover $5,185 and to enforce a lien, under the provisions of the "Mechanics' Lien Act," 6 Edw. VII. c. 21 (Alta.), for the unpaid balance of the price of materials supplied during the months of August and September, 1907, to one Short, who was the contractor for the erection of a number of buildings for the appellant (defendant) on his land, in the City of Calgary, in Alberta. The plaintiffs had supplied materials to Short, during the construction of the buildings, up to the end of July and had been paid therefor. The contractor being unable to complete his contract, on or about the 1st of October the appellant, in order to save his property, took over the works and completed the buildings. No formal cancellation of the contract with Short was made, but the evidence shewed that it had been in fact so taken over by the appellant; that all subsequent payments made by him were necessary to complete the buildings and that, added to payments formerly made. the amlount paid largely exceeded the contract price. also appeared that, at the end of July, the paynents made to Short and upon his order amounted to a sum in excess What then due and owing to the contractor for the works executed by him up to that date. All claims for work and materials supplied in conneetion with the buildings had been paid with the exception of the balance claimed by the plaintiffs. On 5th September Short gave his promissory notes to the plaintiffs for the full amount of their claim and these notes were discounted by them, but, being dishonoured by the maker at maturity, they subsequently paid by plaintiffs.
At the trial 'Mr. Justice Beck dismissed the action and held that, under the circumstances of the case, there never having been any sum owing and payable to the contractor by the owner at the times when delivery of the materials were made by the plaintiffs in August and September, no lien attached. This judgment reversed by the judgment now appealed from. After hearing counsel on behalf of both parties, the Supreme Court of Canada reserved judgment and, on a subsequent day, allowed the appeal with costs and restored the judgment of the trial judge.
The appellant appeared in person.
Chrysler K.C. and Clifford Jones for the respon dents.