Heim v. Elliott , 66 Wash. 361 ( 1911 )

Gose, J.

The appellants, as the owners of two lots in the city of Seattle, on September 3, 1909, entered into a contract with the respondent Martin, hereafter called the contractor, whereby the latter agreed to furnish all the labor and material and erect a dwelling house on the lots, for a stipulated price. The respondent Wilkinson thereafter, in pursuance of an agreement with the contractor, furnished the material for and installed and finished the hard wood floors. The contract price therefor was $194. Thereafter, at the contractor’s request, Wilkinson did extra work of the value of $15.50. No payments were made upon this contract. The respondent Heim, in pursuance of an agreement with the contractor, furnished the material and labor for and installed the plumbing and the heating plant. The contract price was $2,050. The alleged balance is $666.98. At the conclusion of the trial, a judgment was entered against the contractor in favor of the respondent Wilkinson for $209.50, and in favor of the respondent Heim for $472.98, and making these amounts a lien against the appellants’ property. The facts applicable to the other respondents will be stated in discussing the liens decreed in their behalf. The owners of the property have appealed.

The respondents Wilkinson and Heim contend that they are subcontractors, and that they were not required to deliver or mail to the owner a duplicate statement of the material which they furnished. This contention is not tenable. 'Our statute, Rem. & Bal. Code, § 1133, provides that “every person” furnishing material to be used in the construction of a building “shall at the time” the material is delivered, deliver or mail to the owner of the property upon which the material is to be used a duplicate statement of all material delivered, etc. It seems clear, therefore, that the respondents having failed to deliver the duplicate statements, cannot be allowed a lien for the material which they furnished. Finlay v. Tagholm, 62 Wash. 341, 113 Pac. 1083.

The respondent Wilkinson testified that the labor performed in completing his contract was of the value of $117.61, and the respondent Heim testified that the same item in his contract was of the value of $546.20. The respondents contend that these items are lienable. The appellants assert that they are not lienable, because the contract of each of the respondents with the general contractor was entire. They had no contract with the appellants. Hence, there was no privity of contract between them. Hunnicutt & Bellingrath Co. v. Van Hoose, 111 Ga. 518, 36 S. E. 669. Rem. & Bal. Code, § 1129, entitles these respondents to a lien for their labor, and we do not think that this right is defeated because the contract with the general contractor was indivisible. Such a determination would not be in harmony with the rule of liberal construction enjoined by the provisions of Rem. & Bal. Code, § 1147. The lien of the respondent Wilkinson will be reduced to $117.61, and the lien of the respondent Heim will not be disturbed. The court made a deduction of $194 from his claim on account ■of defective workmanship.

The respondent Ballard Lumber Company was given a lien upon the property for $467.23. In September, 1909, it contracted with Martin, the general contractor, to furnish material to be used in the erection of the dwelling. It commenced delivering the material in pursuance of its contract on September 14, 1909, and continued until March 31, 1910. The deliveries were continued from day to day. On the date of the first delivery it mailed to the appellants a duplicate statement of all the material covered by its contract. No other duplicate statement was mailed to the appellants, and none was delivered to them. This lien should not have been allowed. The duplicate statement was not mailed “at the time” such material was delivered. This respondent invokes the rule of liberal interpretation. To enforce this lien would be legislation rather than interpretation. Six and one-half months elapsed between the first and the last deliveries. The statute was not substantially complied with. Finlay v. Tagholm, supra.

The respondent contractor purchased material from the respondent Bailey-Du Bois Sash, Door & Mnfg. Company, of the value of $2,269.80, to be used in the erection of appellants’ dwelling. Of this amount, $1,165.45 was delivered between January 28 and April 6, 1910. The balance was delivered prior to January 28. It is admitted that no statement was mailed or delivered to appellants prior to January 28. The evidence is conflicting as to whether respondents mailed the duplicate statements on and after January 28. A reading of the evidence, however, has convinced us that it mailed the statements conformably to the statute after that time. A judgment was entered in favor of the respondent against the contractor for $923.60, and a lien was established in its favor against the appellants’ property for that amount. The following payments were made on the account before the commencement of the suit: December 7, 1909, $400; April 5, 1910, $200; April 26, 1910, $746.11. The last two payments were made out of the contractor’s money by an agent of the company which had bonded him. When the payments were made, no directions were given as to how they should be applied. The respondent credited them as they were severally made upon the oldest items of the account. If these credits were properly made, or if the law would make a like application when the debtor gives no direction as to how he wishes the payment applied, the lien was properly established. The appellants concede that, in the absence of a direction by the debtor or an application by the creditor, the general rule is that the first item on the debit side of the account is discharged or reduced by the first item on the credit side. They contend, however, that this rule is not applicable here, because the bonding company through whom the payments were made has an equity in the money. We do not understand how this question is open to the appellants. The bonding company is not a party to the suit. Assuming, however, that the appellants may raise the question, we do not think the authorities cited are controlling upon the facts before us. In the case of Crane & Co. v. Pacific Heat Power Co., 36 Wash. 95, 78 Pac. 460, cited by the appellants, the creditor had applied the payments to prior accounts having no connection with the building which was the source of the fund from which the payments were made. In Merchants’ Ins. Co. v. Herber, 68 Minn. 420, 71 N. W. 624, it was held that the obligee in a bond as against a surety could not apply payments made by the principal to a debt which the principal owed before the bond was given. It is argued that the payments made in the case at bar were affected with an equity in favor of the surety. The equity of the surety in this fund was less than the equity of the respondents. The money belonged to the principal. The material furnished by the respondent was one of the sources of the fund. The surety had, so far as the record discloses, contributed nothing to the source which furnished the fund. Where a party performs work upon and furnishes material for a building, some of which embraces extra work which is inot lienable, and has received partial payments without any direction as to their application, a court of equity will apply the payments to the nonlienable account. Barbee v. Morris, 221 Ill. 382, 77 N. E. 589. The lien was properly allowed.

The judgment will be reversed, with directions to enter a judgment conformably to this opinion.

Parker and Mount, JJ., concur.