Davis & Rankin Building & Manuf'g Co. v. Knoke

Vanderburgh, J.

This case would be controlled by the decision in Gibbons v. Bente, 51 Minn. 499, (53 N. W. Rep. 756,) but for the fact of the insertion of certain provisions in the contract here involved which are not found in the one under consideration in the case referred to.

In the contract in this case the defendants, in the first place, agreed to pay the sums severally set opposite their names in consideration of the erection and completion of a certain creamery, described in the complaint, by the plaintiff’s assignors.

The contract provides for the organization of a corporation in which each subscriber should be entitled to receive stock to the amount paid by him under the contract.

The assignors of the plaintiff by the contract “agree to erect said creamery according to the within plans and specifications for the sum of $5,000, payable in cash, or as hereafter specified in said contract.” And the contract also contains the further provisions, first above referred to, viz.: “The above-mentioned $5,000 is to be paid as follows: twenty five per cent, to be paid in cash when said creamery is completed and the above-mentioned machinery placed therein, all in good running order; forty per cent, to be settled by good, approved joint note, payable in three months from the date of completion of said creamery; thirty five per cent, to be settled by good, approved joint notes, payable in six months from date of completion of said creamery.” This obligation binds all the subscribers, including these defendants. They jointly assume the payment of the consideration. They agree to pay twenty five per cent, in cash of the whole consideration of $5,000, and to provide for the balance by approved joint notes. As between the plaintiff and parties of the second part, the contract does not contemplate that the liability should be apportioned.

(Opinion published 57 N. W. Rep. 63.)

It follows that the plaintiff is entitled to enforce its lien upon the entire property in question, and not merely upon the separate interests of such of the subscribers as have not paid.

The order appealed from will accordingly be reversed, and the case remanded, with directions to render judgment for the plaintiffs as prayed for in the complaint.