The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1894-01-31
JUDICIARY JoTTINas.
Important Decision to Builders. Me.
chanics and Material Men.

Important Decision to Builders, Me-
chanics and Material Men.
A unanimous decision of the Su-
preme Court. by Chief Justice Judd,
has been rendered in the case OF
Samuel G. Allen, doing business as
Allen n Robinson, vs.. q. W. Lincoln
and ". G. Peaccc.:. In this action
plaintiff claims in assumpsit OF the
defendant. Lincoln, SiGi3S for ma
terials furnished aud mouey advanc-
od to him in the erection Of dwell
ling house and uutbuildings for the
defendant, W. G.. Peacock, at Wal
XIX. and against Peacock to enforce
a material mau's lien upon his said
house, notice of which had been filed
according to the statute.
At the trial of the case, which was
Jury waived, the Court found that
the delivery Of the materials was al.
mitte,l. aud that it was sufficiently
proved that such materials were fur
nishcd 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
condition OF which was that the
principal Lincoln shall deliver the
said work to the said W. &. Peacock
free from all liens aud claims, with
out further cost, expense or charge
to the said W. &. Peacock than is
agreed or provided for in said agree
ment. aud shall protect said proper
ty aud its owner from all liens and
claims for the space Of ninety day:
after the completion Of the con
struction Of said buildings.
II was claimed by defendant Pea
cock that plaintiff had waived hi,
right To a lieu upon the propert,
because he was surety on the bone
conditioned to deliver the hous'
free OF all lieus and claims, and Ia
moved for Judgment.
The plaintiff claimed that he wa
entitled To his Judgment aud tha
the defense Of estoppel or waive
could not be set up IN an action a
law. but that Peacock must seek hi
remedy on the bond.
The Court below held that tn
,, plea OF tn" defense was well taker
J that Mr.. Allen could not establish
lien where he had covenanted 4
save the property from such q Liza
e bility. II therefore ordered judy
nent to be entered in Mr.. Peacock
favor, declaring the notice OF lie
fled against his property To be O
! no effect Plaintiff excepted To thi
decision.
The Supreme Court now sust ain
the exception aud over.rulcs tn
motion for Judgment for the defend
ant, and the case is sent back /" tn
Circuit Court, First Circuit, "a
e further proceedings. Following
the syllabus of the decision:
~. contracted to build dwcllin
!, hous. for J.. and gave bon
!. to deliver the building free Of lieu
!, and claims. A. was surety on I'll
:. bond aud delivered materials To l.
!, for use on the building.
Held: A. il no, estopped to a
n .ert his material mans lion by rei
: .on of being surety on tn. bond"
), r. VI. Hatch for plaintiff. ". !
=. Kinney for Peacock: j. A. Ma2oo
n for Lincoln's assignee.
4 The Bauuing estate matter h'
4 been before Judge Cooper since ye
- terday morning. 4 full report, il
a.. Gliding the declaration, answer au
evidence, will appear in succeedin
, issues Of the BCLLErIN.