The Hawaiian gazette., 1895-11-08
OPINION OF THE COURT, BY FREAR, ]

OPINION OF THE COURT, BY FREAR, J
The defendant Redward contracted
with the defendant Hawaiian Lodge
to do, for S7254, the carpenter work,
wrought ami east iron work and plss
tering upon the building known IS
the Masonic Temple situated on the
esterly corner of Hotel and Alakea
streets in Honolulu. The contractor
abandoned the work before its COM
ple,ion and after $500 had been paid
under the contract, this being more
than was payable for the proportion of
work then done TIE Hawaiian Lodge
tnereupOn completed the work at =
cost exceeding the original contract
price The plaintiff, ). & Allen, doing
business under the name of Allen x
Robinson, claims 10 have advanced
S2S92 cash for labor aui TO have fur
nished materials of the value Of
1914 Is, including importation
charges, to the contractor for this
building. The $500 paid under the
contract was ali paid To the plaintiff
upon the order of the contractor. The
plaintiff now sues for balance of
1855 Is ard interest thereon ami
claims lien on the building aud lot,
uUd-r the "AcJ TO Provide for Liens
OF Mechanics and Material men, Gu
q, Laws nj 1855.
The case was tried ia the Circuit
Court of the First Circuit. jury waived,
where judgment was rendered for the
piaintff for S2SSi.79, besides interest,
this b-iug the amount claimed les
s5l 66, the value OF materials shown
not 10 have been delivered aud the
lien was sustained for this amount
upon the building aud premises of the
defendant Hawaiian Lodge.
The rweuty-thrs- exceptions emu
mersted in the bill Of exceptions msy
be considered in substance under a
few head-.
First, the exceptions u the follow
ing findings of fact msd- by the trial
court, namely: that ali the materials
in question were delivered eNcepl Ger
tsiu items of I value of S5l.66; tuat
the plaintiff advanced cash 10 the |
for Ian =; that there was
an agreement between the contractor /
and the material mau that payment /
shOUli be applied, first, on account Of /
the cash advanced, sui tneu on ac 4
count OF the materials furnished; that /
the payments We're 80 applied; that I
the leo claimed was not for cash al I
yAuced; that there was not such con 4
fusion in the SccOuut that items tor /
" hieh 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, a.
tbey must he. a. in the nature Of a
verdict OF jury, caunoJ be >et aside,
there being sufficient evidence to >u-
tain them.
Secondly, evidence Of the agreement
to application of payments
was properly admitted. In the so-
senee of an agreement upon THIS sub
eet with the owner, IL was competent
or the contractor and N trerial-man TO
lgree upon the application of pay
nents made 10 the latter upon the
rider of the former. The rules relat
ny TO the application OF PAY ments in
general apply u cases OF this kind.
Phil Nee. Liens. See. 2S7; , Jones,
Liens, Sec 1907; Am. Id, Gas. Srd
Ed, $50, 299.
Thirdly, the Circuit Court correctly
Held that the amount for which the
,ropertv may be Charged with lien !
q favor of subcontrsctOr or material
nan is not limited to the amount pay '
.ble by the owner 10 the contractor.
In \ few States, subcou.rsctors are
.iyen no lien at ali upon the property,
,ut lien only on the debt psysOle by {
be owner to the contractor. In many
,tstes 8 direct lien is given gu the
but with an express Hmita-
ion to the amount of the original :
ontraet price Under these two
lasses of statutes, the right OF the
has generally been held
D be controlled by the state OF the
count between the owner and con-
msterial-man or suo-con- G
motor being merely subrogsted to {
be rights of the contractor.
Under other statutes direct lien Is {
iven upon the property, either with
nj qualifying or limiting expressions
> to amount, IS IN many States, or .