The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-09

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,
S4,643 SO for materials furnished and
money advanced to him in the cree
ton of a dwelling house and out
buildings for the defendant w. G.
Peacock at Waikiki, and against
Peacock to enforce a material mans
lien 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.. Z. 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. &. Magoon E-q. as
special counsel for the assignee and
proceeded with the case to determine
whether plaintiff was entitled to a
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
s-ch 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, con-
dition of which was that the princi-
pal Lincoln "shall deliver the said
work to the said W. @. 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 a lien upon the property be
cause he was surety on the bond con-
ditioned to deliver the house free of
all liens aud claims and moved for
judgment
The plaintiff claimed that he was
entitled TO his judgment and that the
defence IF 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 Il
Robinson, Is seeking to establish a
lien against this property of MIR. Pea
cock, which he has directly covenant
ed and agreed to save harmless from
this very sort of liability / am fully
of opinion that this Is defence
available In an action at law and that
MIR. Peacock will not be compelled
to institute Il separate action to en-
force his rights under the bond
Considering that the undertaking of
MIR. Allen is sufficient defeuse to
this action 90 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:
Ia the argument before Ms plain
tiff's counsel, F. III. Hatch, contends
that the Act of signing bond as
Surety for the contractor Is not an
equivalent TO q waiver of lien which
the surety would otherwise have for
materials furnished, because Q) the
rights and liabilities OF the two rela
tions are not co extensive. The liza
bility as a surety is limited by the
amount of the penalty in the bond
and cannot be greater " by
signing such bond as surety deal
er cannot be, presumed to have es
topped himself from dealing with
the principal and selling him mater
ial in the ordinary course of trade or
of exercising all appropriate remed-
les given by law. (3) The relations
between principal and surety cannot
be relied upon by subsequent mater
ial men to defeat a prior lien. (4)
The fact that plaintiff is liable on his
bond in a given amount Is no reason
why he should not have Judgment on
his lien. (5) A defense not plead
able on set off cannot be admitted
In an action at law to prevent multi
plicity OF suits. Citing Lutheran
Church " Weir, quoted in Is Att.
r. $50.
Counsel for defendant Peacock,
w. A. kinney, relies upon an equit-
able estoppel. The bond given by
Allen to indemnify Peacock against
liens Is conduct inconsistent with the
assertion of lien upon his part.
The giving of the bond estops Allen
from claiming a lien for any sum,
and the penalty of the bond is avail
able to Peacock against the asser
ton OF liens from other parties TO its
full amOunt