Browinski v. Pickett , 113 Ky. 420 ( 1902 )

Opinion of the court bx

JUDGE BURNAM

Reversing.

On August, .1898, A. F. Pickett contracted with M. I. Barker to furnish all the material and labor necessary for 'the completion of a block of buildings according to the plans and specifications of the architect on a lot owned by Barker in Carrollton, Ky., at the price of $15,196.50. By the terms of the contract,- at the end of each month the architect was to furnish an estimate of the value of the work done by Pickett, and Barker was to pay 80 per cent, thereof, and was to retain the remaining- 20 per cent, until the completion of the building as a guaranty for the faithful performance of his contract by Pickett. In January, 1899, Pickett abandoned the job, leaving the house unfinished^ having been paid prior to.that time $12,632.20. Barker finished the house at the cost of $1,688.34, having-paid altogether $14,320.54, leaving in his hands $874.41 of the contract price; and the outstanding claims due to parties who furnished material in the erection of‘ the building amounted to $2,992.24. Among them was a claim due to Browninski & Adcock, aggregating $856.53, for paints, putty and glass furnished to Pickett, which were used in the building. Barker prorated the balance remaining in his hands to the unpaid claims, and offered to- pay Browninski & Adcock their proportion, which was refused. They thereupon filed the statement required by section 2468 of the, Kentucky Statutes in the office of the clerk of the county court of Carroll county, and on the 13th of September, 1899, instituted this suit against both Pickett and Barker, seeking a personal judgment for the amount of their claim, and for an enforcement of their lien for the -full amount of their debt. They alleged that the glass, putty and paints were sold and delivered to Pickett at the request of Barker, to be used in the building, and that they were in fact so used. The case was referred to the master commissioner, as required by section 2471 of the Kentucky Statutes, who reported that the plaintiffs- had á lien on the building for the full amount of their debt. Barker, in his answer, “says that he has no knowledge or information sufficient to form a belief that the articles sued for by the plaintiffs were purchased by Pickett, and used in the erection of the building; and denied that he either ordered the materials or promised to pay therefor.” He subsequently filed an amended answer, setting out the facts detailed supra, and offered to pay the plaintiffs $265.62. The plaintiff Adcock .testified that they furnished to Pickett all the materials sued for at the price named, and that they were, used by Pickett in the erection of the Barker building; that while the materials were being furnished they notified the son of Barker, who was superintending the construction of the building, that they were furnishing' these materials to Pickett, and demanded payment Tor the amount which had been furnished up to that time, and that he told them to keep him advised as to the increase in the bill, and promised that he would reserve out of what was due Pickett enough to pay them. Neither Pickett nor Barker testified in the case, and upon final submission the chancellor gave judgment against Pickett for the full amount off the debt, and adjudged that plaintiffs had a lien on the real estate for $346.61. Plaintiffs upon this appeal complain that the trial court erred to their prejudice in not' adjudging them a lien for the full amount of $856.53, with interest from the 20th of February, 1899, and Barker, by cross appeal, complains that the judgment awarded plaintiffs a lien in excess of $245.62.

In Hightower v. Bailey, 108 Ky., 198 (22 R., 88) (56 S. W., 147) (49 L. K. A., 255), this court said, in construing section 2463 of the statutes,' which secures a lien to persons who furnish labor or material in the erection of a building: “This statute is radically different from our former laws on this subject. The preceding statutes, while giving liens to contractors, sub-contractors, material men, and laborers, practically thereby provided a process of garnishment in the hands of the owner of any money he might owe the contractor. Its purpose was merely to substitute the sub-contractor, material man and laborer to the rights of the contractor, and was effectual only in the event the owner was indebted to the contractor. It was entirely safe for the owner, without notice of the claims of others,, to pay his contractor when he pleased, even in advance-. The present statutes were clearly meant to fasten, and do-fasten, on the property of the owner a lien for the claims of the sub-contractor, máterial man and laborer, although the owner has no notice of such claims, and may owe the contractor nothing.” There is no doubt that appellants furnished the material sued for to Pickett to be used by him in the erection of appellee’s house, and that they were so used. The statute, under this state of fact, gave to appellants a lieu upon the land on which the building was erected, which can not be evaded by the owner by paying to the contractor on estimates made by the architect; and the fact that he did so furnishes no defense to the claim sued for. The only limitation upon the liens of persons who furnish labor and material in the erection of the building is that they shall in no case be for a greater amount than the contract price of the original structure. The report of the commissioner shows that appellants are the only parties who have availed, themselves of this provision of the statute, and secured a lien upon th'e property of appellees. It is insisted for appellee that, before a material man can acquire a lien under the ¡statute, it must appear that the material was obtained by the contractor as the agent of the owner for use in the construction of the building; that, if purchased in his own name, with the intention to be used in the construction of the building, the material man would acquire no lien upon the property, even for the materials that were actually used in the building. There is nothing in the statute which is susceptible of such a construction. On the contrary, it says in plain terms that a person who performs labor or furnishes materials in the erection, altering or repairing of a house by ■contract with the owner, contractor, sub-contractor, architect or authorized agent shall have a lien thereon and upon the land upon which said improvements shall have been made. The testimony in this case is up both to the letter and spirit of the statute, and we think the chancellor erred in not adjudging appellants entitled to a lien on the property for the full amount of their claim.

For reasons indicated, the judgment is' reversed, and cause remanded 'for proceedings consistent with this opinion.

Petition for rehearing by appellee overruled.