Landyskowski v. Martyn ( 1892 )

Long, J.

This bill was filed to enforce a mechanic’s lien Against the property of the defendant Martyn. The savings bank was made defendant, as it held a mortgage Against the premises upon which the lien is sought. Decree was entered below in favor of the complainants for $159.12, and that amount adjudged a lien upon the premises prior to the claim of the bank, the court finding that complainants commenced work upon the building June 12, 1891; the mortgage not being executed until the 28th of that month.

The complainants contracted to do the brick work upon a store on the premises for the sum of $1,247, the money to be paid in installments, — $450 when the first tier of joist was laid; $300 when the second tier was laid; $200 when the roof was on; and tbe balance, $297, when tbe building was completed. They proceeded with the work, and tbe first two of tbe installments were paid in accordance with tbe terms of the contract. When tbe third installment became due, tbe defendant paid only $100 of tbat.

There is a controversy between tbe complainants and tbe defendant Martyn as to tbe reason why tbe $200 was not paid; tbe complainants claiming tbat tbe defendant refused to pay it upon tbe ground tbat tbe work bad not been done within the 60 days provided for in tbe contract, and for tbat reason prevented them from going on with tbe balance of tbe work; while tbe defendant contends tbat be refused to pay tbe $100 because be bad already accepted orders, at tbe request of complainants, in favor of material men, amounting to $98; tbat be did not compel thg complainants to quit the work, but that they abandoned it for that reason. On tbe bearing tbe complainants admitted tbe account of. tbe defendant for $98, paid to material men. Tbe remaining work to be done upon tbe contract consisted of plastering and penciling the building, and laying tbe brick cellar floor.

Upon the whole evidence tbe court below found tbat tbe complainants bad done extra work amounting to $97, so that, if their work bad been fully completed, they* would have been entitled to receive $1,344. They had been paid upon their contract $850. The court also found tbat tbe defendant bad completed tbe contract, and bad paid tbe $98 to material men, and was entitled to have deducted from tbe price fixed by tbe complainants5 contract and tbe extra work done by them tbe amount it cost him to complete tbe work, together with tbe amount paid to tbe material men. We are not disposed to recite here tbe testimony from which tbe court below found tbe amount which it cost tbe defendant to complete the work, as we think the right conclusion was reached, and tbat tbe amount found due the complainants should not be disturbed. The bank did not appeal.

The decree of the court below must be affirmed, with costs.

The other Justices concurred.