#### Nancolas & Howard v. Hitaffer & Prouty, Defendants, and William Bartlett, Appellant.

1 Mechanics’ liens: repair of material furnished. A charge for repairing a door lock which is necessary to put a building in condition for delivery under the contract of construction, when made in good faith, is lienable under the statute.

2 Same: material men: liability of owner. The owner of a building in process of construction, who, with knowledge of the furnishing of material for which a lien will exist, pays claims of a different character from a reserve fund in his hands due the contractor, is liable for the lienable charge.

3 Same. Where a building in process of construction under contract collapses, and by a new agreement with the contractor the owner is to furnish the additional material to rebuild and he induces material men to continue furnishing the same, he becomes liable to them for the material so furnished; and it is immaterial that the reconstruction cost him more than he agreed to pay in his original contract; especially where he was as much to blame for the collapse as the contractor.

4 Same: statement of claims: false charges. In order to defeat a mechanic’s lien because of improper charges it must appear that the statement is so incorrect as to be fraudulent.

5 Abandonment of contract. Where a building in process of construction collapsed, it is held that-the evidence did not show an abandonment of the work by the contractor so as to authorize the owner to use the reserve funds in his hands for the purpose of reconstruction, and thus defeat claims of one furnishing material prior and subsequent to the collapse.

*Appeal from Emmet District*Court.— HoN. A. D. Bailie, Judge.

Friday, June 7, 1907.

Rehearing Denied, Tuesday, November 19, 1907.

• Suit in equity to establish tbe lien of a subcontractor. There was a judgment for the plaintiff from which the defendant Bartlett appeals.

*Affirmed.*

*342*J. G.*Myerly, for appellant.

*Byron M. Goon*and *B. A. Morling,*for appellees.

Si-ieewiN, J.—

In May, 1902, tbe defendants, Ilitaffer & Pronty, entered into a written contract with tbe appellant Bartlett, by tbe terms of wbicb they agreed to build for Bartlett, for tbe sum of $10,670, a tbree-story brick building and to furnish all labor and material for tbe same according to tbe plans and specifications of Bartlett’s architect. At about tbe time this contract was entered into, tbe contractors entered into a contract with tbe plaintiffs herein, by tbe terms of wbicb tbe plaintiffs were to furnish all hardware necessary for tbe construction of tbe Bartlett building. Tbe plaintiffs furnished hardware and builders’ material in accordance with tbe terms of their contract, until the building collapsed during tbe progress of the work thereon. They also furnished material wbicb went into tbe building after its reconstruction commenced, and this action is to establish and enforce a mechanic’s lien for tbe material so furnished. A portion of tbe building collapsed in August, 1902, at wbicb time, as we understand the record, less than a third of tbe material furnished by them bad been used in the building. Tbe last item of tbe material furnished was on March 18, 1903; and this charge was for repairs to a Yale lock. The next preceding charge was on February 3d, and the statement and affidavit for a lien were filed on tbe 3d day of April, 1903. Tbe appellants claim that tbe charge of March 18th is not a lienable item, and this presents one of the questions for determination in this case.

1. Mechanics’ liens: repair of material furnished. It is largely a question of fact, and, tbe trial court having found adversely to tbe appellant’s contention, we shall not consider at length the evidence supporting its finding. It appears from the record, however, that a Yale lock was furnished for the the building, and put in place some time prior front door of *343to tbe 18th of March. In attempting to make it work more readily, one of the contractors took it off of the door and took it to pieces, and while doing so lost some of the parts connected with the lock proper, which necessitated returning the lock to the factory for repairs. It was returned to the plaintiffs herein, and by them returned to the manufacturers, and was afterwards sent back to them and delivered to Bartlett himself. There was a charge for repairing the lock and for expressage thereon. We think the item a lienable one under the statute, which provides a lien for “ any materials . . . or fixtures for any building,” etc. The contractors undertook to furnish the building with the lock in question, and it was to be delivered over to the appellant in good working order, and, if it became necessary to have it repaired in order to so deliver it, it was proper for the contractors or for the plaintiffs as subcontractors acting under their direction to have necessary repairs thereon made, and to make a charge therefor. If this was done in good faith, and not for the purpose of extending the time in which the lien might be filed, we see no reason for holding the item not lienahle. So far as the authorities have been called to our attention, they seem to establish a rule in accordance with this conclusion. *Jefferson Water Supply Co. v.*Riter, 138 Ind., 170 (37 N. E. 652); *Monaghan v. Putney,*161 Mass. 338 (37 N. E. 171) ; *Miller v.*Wilkinson, 167 Mass. 136 (44 N. E. 1083) ; *Great Spirits Springs Co. v. Chicago Lumber Co.,*47 Kan. 672 (28 Pac. 714) ; *Conlee v.*Clark, 14 Ind. App. 205 (42 N. E. 762, 56 Am. St. Rep. 298). In *Turner v.*Wentworth, 119 Mass. 459, a small amount of additional work was done at the owner’s request several months after the other work was performed. The court there says: *“*The evidence shows that the petitioners did some labor and furnished some materials used in the erection of the building within the thirty days. If this was done in good faith for the purpose of completing their contract, and not colorably in order to revive *344their lien, the thirty days would begin running from the time they thus performed labor and furnished materials.”

2 Same- mate-liabmty: of owner. By the terms of Bartlett’s contract with Hitaffer & Prouty, he was to make semimonthly payments on the estimates of his architect, reserving’in all cases twenty per cent. sxlck esthnates to protect himself. The evidence shows, and the trial court so found, that the account sued on herein began to run while Bartlett was making payments to the contractors in accordance with the contract, and while there were funds in his hands due the contractors which he afterwards paid out upon estimates which were not liens upon the premises, and for which no liens were ever claimed. It "appears from the record that Bartlett knew very soon after the work on this building commenced that the hardware was being furnished by these plaintiffs; and, this being true, he had no right to pay out the reserve funds which he held in his hands on other claims for which no lien had been filed, and, having done so, he is liable for the plaintiff’s claim, unless the conditions raised by the collapse of the building shall be held 'to, relieve him of such liability. *Queal v. Stradley,*117 Iowa, 748; *Green Bay Lumber Co. v. Adams,*107 Iowa, 672; *Green Bay Lumber Co. v. Thomas,*106 Iowa, 154; *Othmer v. Clifton,*69 Iowa, 656.

3. Same. After the collapse of the building, the contractors and Bartlett entered into a contract, whereby it was to be reconstructed without at that time determining who was responsible for the collapse, and the practical effect of •this contract was to put the entire building under the management and control of Bartlett; he agreeing to pay for the additional material and labor necessary to carry on the work.. There is also testimony tending to show that Bartlett by his statements induced the plaintiffs to continue furnishing material for his building, relying for their pay on him rather than on the contractors. In view of this testimony and his control over the building and the payments *345made by him for other material and for labor during the reasonable reconstruction of the building, we think the district court properly held him liable for the material furnished by the plaintiffs after the collapse.

The appellant contends that the reconstruction of the building made necessary by its collapse cost him much more than he had agreed to pay in his original contract, and that he was entitled to use all the money remaining in his hands after making payments according to the terms of the contract, for the purpose of the reconstruction. This might be true under ordinary circumstances, but the record before us convinces us that, if the’ appellant was not directly responsible for the collapse of the building on account of faulty plans and specifications, he was at least chargeable with as much fault as were the contractors, and that he is now in no situation to make the claim as against the plaintiffs’ right that he be permitted to reconstruct his building with the funds which would otherwise have gone to the plaintiffs.

4. statement fais^charges. The appellant further contends that the plaintiffs’ lien should not be established because the itemized statement therefor contained charges for items which are not properly lienable. This condition will not defeat the right to a lien, unless it be shown that the plaintiffs were knowingly attempting by false charges to subject the defendants’ property to an improper burden. In other words, in order to defeat the right to a lien, it must.be made to appear that the statement is so incorrect as to be fraudulent. *Queal v. Stradley, supra; Lumber Co. v. Miller,*98 Iowa, 468; *Lumber Co. v. Davis,*105 Iowa, 27.

6. of contract”1 The appellant also claims that Hitaffer & Prouty abandoned the building after its reconstruction had been partially accomplished, and, relying upon this hkinij they contend that he was authorized to complete the building, using therefor the reserve fund which he had on hand at the time of its *346collapse and tbe balance of tbe original contract price. Tbe evidence does not support tbe claim of an abandonment of tbe building by tbe. contractors. It is true that they stated to tbe appellant, after tbe collapse, that they were without sufficient funds to purchase material and guaranty tbe payment of tbe laborers engaged thereon, and in effect arranged with tbe appellant to make advance payments, but they continued at work on tbe building, ás we understand tbe record, until it was completed, and, while Bartlett was tbe general overseer thereof, they put in their time and their labor on tbe contract which they bad undertaken. This surely cannot be construed into an abandonment as claimed by tbe appellant.

The. trial court reached the right result in this case in our opinion, and the judgment must be, ahd it is *affirmed.*