The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-11-08

OPINION OF THE COURT, BY FREAR, ].
The defendant Redward contracted
with the defendant Hawaiian Lodge
to do, for S7234, the carpenter work,
wrought and cast iron work and plas
tering upon the building known as
the Masonic Temple situated on the
eaterIy corner of Hotel and Alakea
streets in Honolulu. The contractor
abandoned the work before its com
pletion and after $4,000 had been paid
under the contract, this being more
than was payable for the proportion of
work then done. The Hawaiian Lodge
thereupOn completed the work at n
cost exceeding the original contract
price The plaintiff, ;. &. Allen, doing
business under the name of Allen d
Robinson, claims to have advanced
1892 cash for labor and to have fur
nished materials of the value of
$5I9445, including importation
charges, TO the contractor for this
building. The $1,000 paid under the
contract was all paid to the plaintiff
upon the order of the contractor. The
plaintiff now sues for a balance of
S2SS6 45 and interest thereon and
claims lien on the building and lot,
under the "Act to Provide for Liens
of Mechanics and Material men," Oh.
81, Laws of 1888.
The case was tried in the Circuit
Court of the First Circuit, jury waived,
where judgment was rendered for the
plaintiff for $2S34.79, besides interest,
this being the amount claimed less
SOL. SO, the value of materials shown
not to have been delivered, and the
lien was sustained for this amount
upon the building aud premises of the
defendant Hawaiian Lodge.
Nc =
merated in the bill of exceptions may
be considered in substance under
few heads.
First, the exceptions to the follow
ing findings of fact made by the trial
court, namely: that ali the materials
in question were delivered except Ger
tain items of the value of S5l.66; that
the plaintiff advanced cash To the
contractor for labor; that there was
an agreement between the contractor
aud the material man that payments
should be applied, first. on account of
the cash advanced, and then on ac-
count of the materials furnished; that
the payments were so applied; that
the lien claimed was not for cash adj
vanced; that there was not such con
fusion in the account that items for
which the law gives no lien could not
be separated by inspection; aud that
the materials were not furnished
solely on the credit of the defendant
Redward.
These findings of fact, regarded, as
they must be, as in the nature Of a
verdict of jury, cannot be set aside,
there being sufficient evidence TO sus-
tain them.
Secondly, evidence Of the agreement
relating TO application of payments
was properly admitted. In the alb
sence of an agreement upon this sub
ject with the owner, il was competent
for the contractor and material-man to
agree upon the application of pay
ments made to the latter upon the
order of the former. The rules relat-
ing to the application of payments in
general apply To cases OF this kind.
Phil Nee. Liens, Sec. 2S7; , Jones,
Liens, Sec. 1907; Am. Id, Cas-. 3rd
Ed, $50, 299.
Thirdly, the Circuit Court correctly
held that the amount for which the
property may he charged with q lien
in favor Of a subcOntractor or material