The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-02-09
In the Supreme Court of the Ia.
waiian Islands.
DECEMBER TERM. 1893.
BEFoSE JUDD, CD, BIcKERToN, AND
FREAR, u.
SAMUEL 9. ALLEN, doing business as
ALLEN & ROBINSON, VS.. G.. W.
LINCOLN aud w. q. PEACOCK.

l.. Contracted 10 build dwelling house
for 2. and gave a bond u deliver the
building free of liens and claims. A.
was surety on the bond and delivered
materials TO l.. for use in the building.
Held A is not estopped to assert his
material mans lien by reason of being
surety on the bond.
OPINION OF THE COURT BY JUDD, c. J.
In this action plaintiff claims in
assumpsit of the defendant, Lincoln,
$4,643.3S for materials furnished and
money advanced to him in the cree.
ton of dwelling house and out
buildings for the defendant w. G.
Peacock at Waikiki, and against
Peacock to enforce a material mans
hen upon his said house, notice of
which has been filed according to
the statute.
At the August Term of the Circuit
Court First Circuit the jury was
waived. Before the case was brought
on for hearing Lincoln had become
bankrupt and Mr.. p Muhlendorf
was appointed as his Assignee in
bankruptcy. Mr.. Muhlendorf is also
the attorney in fact of plaintiff.
Whereupon, as the bankruptcy of
Lincoln had suspended this suit so
far as he was concerned, the Court
appointed j. A. Magoon Esq. as
special counsel for the assignee and
proceeded with the case to determine
whether plaintiff was entitled to
Judgment enforcing the notice of lien
upon the said dwelling house.
The Court found that the delivery
of the materials was admitted, and
that it was sufficiently proved that
such materials were furnished by
plaintiff to defendant Lincoln at his
request and that they were used in
the construction of the dwelling
house of the defendant Peacock.
There was introduced in evidence a
bond given by Lincoln to him of
which plaintiff was surety, a con-
dition of which was that the princi-
pal Lincoln shall deliver the said
work to the said W. G. Peacock free
from all liens and claims, without
further cost. expense or charge to
the said w. G. Peacock than is
agreed or provided for in said agree
ment, and shall protect said property
and its owner from all liens and claims
for the space of ninety five days
after the completion of the construct
ion of said buildings"
1t was claimed by defendant Pea
cock that plaintiff had waived his
right to lien upon the property be
cause he was surety on the bond con
ditioned to deliver the house free of
all liens and claims and moved for
Judgment.
The plaintiff claimed that he was
entitled to his Judgment and that the
defence of estoppel or waiver could
not be set up in an action at law, but
that Peacock must seek his remedy
on the bond.
The Court held as follows: This
is matter of direct defense. Mr..
Allen, under the name of Allen &
Robinson, is seeking to establish
lien against this property of Mr.. Pea
cock, which he has directly covenant
ed and agreed to save harmless from
this very sort of liability. 1 am fully
of opinion that this is d defence |
available in an action at law and that |
Mr.. Peacock will not be compelled |
to institute separate action to en-
force his rights under the bond.
Considering that the undertaking of |
Mr.. Allen is a sufficient defense to |
this action go far as Mr.. Peacock is
concerned, judgment may be entered
in his favor declaring the notice of
lien filed against his property to be
of no effect"
To the granting of this motion
plaintiff duly excepted.
By the Court:
In the argument before US plain
lifts counsel, f. M. Hatch, contends
that the Act of signing a bond as
surety for the contractor is not an
equivalent to waiver of lien which
he surety would otherwise have for
furnished, because ~ the
rights and liabilities of the two rela
lions are not co-extensive. The liza
1ility as a surety is limited by the
of the penalty in the bond
md cannot be greater. (2) By
Iigning such a bond as surety deal
II cannot be presumed to have es
opped himself from dealing with
he principal and selling him mater
al in the ordinary course of trade or
If exercising all appropriate remed
es given by law. (3) The relations
principal and surety cannot
,e relied upon by subsequent mater
sl-men to defeat a prior lien. az
The fact that plaintiff is liable on his
,ond in a given amount is no reason
Why he should not have Judgment on
lis lien. ~ A defense not plead
Ible on a set off cannot be admitted
n an action at law to prevent multi
,licity of suits. Citing Lutheran
Jhurch v. Wehr, quoted in IS Att.
r. $50.