Evening star. [volume] (Washington, D.C.) 1854-1972, 1892-06-28

An OWNER CANNOT BIZ OBLIGED TO PAY MORT
THAN TIE CONTRACT PRICE FOR HIS KoUsE-
sUBcONIRAcroEs MUST BE OK TIE LOOKOUT
TO SEE THAT THE CONTRACTOR PAYS Them
AN IMPORTANT DECISION.
In The Court In General Term yesterday Mr.
Justice Cox delivered an important decision az
to the rights Of owners, contractors and subcon-
tractors under the mechanics lien law. The
decision was in the case of VIM Whelan ct al.
agt. Catharine '. Young ct al.
The text Of the opinion delivered by Mr.. JUS
tice Cox was as follows: On the 9th of June,
/ 1883. Hansen C. Walter entered into written
contract with Mrs. Young. the defendant, to
/ build house for her and complete il by De-
cember following. for the sum Of s6,o63. 81. to
be paid in eight installments "a the work pro-
crossed. and the contractor was to forfeit 80 for
every days delay in completing the house be-
yond the time agreed on.
Mrs. Young paid six of the installments.
amounting TO q, 900, when, ON the 18th Of Deem
ber sixteen DAYS after the house to have
been completed, Walter abandoned the work,
leaving the house unfinished and 81 1881 OF
the contract price vet unpaid. 1t IL admitted,
by stipulation, that Mrs. Young. after Walter 8
abandonment Of the contract. paid s544.60 in
order 70 complete the house according to con-
tract. This would leave S620.31 of the con-
trnct price unexpended-
1t is further admitted that without negligence
on her part she was unable to have the house
completed until Nay 20, 1889.
II she be allowed to charge the IS per day as
Gquids ted damages for the delay, the balance
of the price would be more than absorbed.
In the meantime. on the nth Of December,
1883. the day Walter abandoned lis contract.
the complainant, Vim. Whelan, fled his notice
of Hen for the sum of s492. He was followed
by others, the claims Of all amounting to
S2.315.5S
This bill was fled on the 9th Of March, 1889,
for all the alleged henors TO enforce the liens
by sale. 1t was dismissed as to Whelan and
one other. Chappelear, whose claim was for
e51.05, and who has died, bat a decree rendered
in favor Of the rest for claims amounting to
s1,7I253, and an appeal taken by both sides.
As fhr as we can gather from the printed
record Whelan's claim must have been dis
missed because the proof showed that he had
been working for Walter on various houses,
had mixed his accounts all up together and re-
ceived payments from him during the building
of Mrs. Youngs house, which probably ought
to have been credited TO that work, but was
not There Ia one question, however, common
to al the claims
A sUBCoNTRAcToR's CLAIM.
The broad question is whether q subcon-
tractor who postpones filing his notice of lien
until the principal part Of the contract price
has been paid. according to the terms of the
contract, can, by fling his notice, assert lien
on the owners property for his entire claim,
although il NAV exceed in amount what re-
mains due under the contract. This will
depend upon the time from which the lien is to
attach and operate.
II we seek the meaning Of the existing law
by the uslml test, j. G.. by considering the old
law, the mischief and the remedy, what do We
find?
By The old law as embodied in section 100
r. ). ID. C., the subcontractors remedy was TO
give notice of his clHm 10 the owner and that
ne held said owner responsible, and he thereby
acquired simply a formal claim against the
owner, not to exceed. however, the amount due
from him to his contractor ut the time Of the
notice. What mischief, under this law, Con-
gress intended to remedy one can only con-
lecture In argument II was claimed that the
mischief was the possible combination between
the owner and the builder to prevent the sub
contractor from receiving anything by so ms
nipulating accounts that nothing would appear
TO be due when the subcontractor notice should
be given.
Assuming this to have been the mischief con-
templated, the present case WIN illustrate the
manner In which 10 is renedied by the act Of
July 2. 1884, which is the law now in force.
That act declares (section Il that every build
ing hereafter erected or repaired by the owner
or his csent in the District Of Columbia, and
the lot or lots of ground Of the owner upon
shall be subject to Hen in favor of the contrac-
tor, subcontractOr, material man, journey
man and labOrer, respectively, for the
payment for work and materials
contracted for or furnished for or about the
erection, construction or repairing of such
building, and also for any engine. machinery
or othe- thing placed In said building or con-
nected herewith SO as TO be fixture: Provided
that the person claiming the lien shall file the
notice prescribed in the second section of this
net: Provided, further. that the said lien shall
not exceed or be enforced for a greater sum
than the amount Of the original contract for the
erection or repair of said building or buildings
By the second section the contractor or sub
contractor &c, may file the notice of lien at any
time during the construction or within three
months after the completion of the building
In this ,sse 1. appears that the contract between
the defendant and Walter was dated June 9.
1sSS. A few days afterward and perhaps before
the work was begun, Nhelan, az subcontractor,
made his bid for the plumbing. according to the
plans and specifications, at and for the sum Of
Saso. which was accepted and the work begun
BY him in the same month.
TEE DELAY IN FILING TIE CLAIM
Now, if he had Immediately filed his notice of
hen, which he could have done under the law.
Mrs. Young would have had notice of his claim;
her property would have been subject to lien
for the whole amount of work to be done under
the subcOntract; sic could no. have made any
arrangement with the builder 10 the prejudice
OF the plumber, and the latter would have been
perfectly protected, and at the same time Mrs
Young, the owner, would have known exactly
how much OF the money she had contracted to
pay her builder ought to go 10 the subcoa-
tractor, and would have paid this money 20 the
builder with her eyes oren and at her own
risk The offsets of the law would have been
entirely accomplished.
But the position taken bv complainants is in
substance, that if the notice Of lien is not filed
until after the completion of the work or after
the principal part Of the contract price has been
paid in pursuance Of the contract, still. II
operates retrosctively as to give a lien for
the whole amount of the claim a. from the
beginning Of the work, making the payments
that have been made in the meantime by the
owner to his builder, though Ill good faith aud
IN perfect accordance With his agreement 20 be
payments In his own wrong and at his own risk
- n they had been made with full notice and
anticipation OF the lienor's rights
Now, this construction of the law, while il
does promote one Of Its objects, viz: the pro-
lection Of the subcontractor. in effect defeats
another, which is the protection OF the owner.
because it would compel him to pay more than
the contract price-sgeinst which he is intended
to be guaranteed by the second proviso In the
first section Of the Law. That this would be in
sontravention Of the law in this respect was
held In q somewhat similar case to the present
(DOQRhty ACT DeylID 4 n Spo;.hie ~a~.