October 28, 1915. The opinion of the Court was delivered by This is an action to foreclose a mechanic's lien for $297.92 for building materials alleged to have been sold to defendant on account, which was denied by defendant.
The findings of the master, which were concurred in by the Circuit Court, are: On September 2, 1912, defendant entered into a written contract with D.O. Killian to repair a storehouse. On the same day, Killian, by writing endorsed on the contract, assigned to plaintiff so much of the payments therein stipulated for as might be necessary to pay for all material furnished by plaintiff in carrying out the contract. Prior to September 9, plaintiff furnished materials to the amount of $43 in value, and charged them on its books to D.O. Killian and S.J. Eassy. On September 9, defendant went to see plaintiff about the kind of materials being furnished, and, then, for the first time, plaintiff notified defendant of the assignment, and that the goods were being charged to him; that defendant consented and promised to pay for them; that on and after September 9, plaintiff furnished materials which amounted in value to $297.92, which sum is due and owing to plaintiff by defendant. The items, amounting to $43, which were furnished before notice to defendant were not allowed.
Appellant has failed to show that the findings below are against the weight of evidence. He contends, nevertheless, that plaintiff is not entitled to a lien, because the contract *Page 360 between defendant and Killian contained this provision: "In consideration of the foregoing, the said S. J. Eassy is to pay said D.O. Killian, as the work progresses, upon production of material, bills and time books in payments not to exceed $100 each, and not to aggregate more than $500, and when the work is finished and accepted by Eassy the balance of $400 to become payable, with the understanding and agreement that said Eassy is to be protected from any claim by materialmen or laborers, and to see that said money, or so much as may be necessary, shall be applied to the payment of material and labor." And that, by taking the assignment, plaintiff became a party to the contract, and was, therefore, bound by the stipulation that defendant was to be protected from any claim by materialmen and estopped from asserting such claim. This contention is unsound; because, first, the contract was not assigned to plaintiff, but only the payments which might become due to Killian under it, and, therefore, plaintiff did not become a party to the contract, so as to be bound by all of its terms; second, plaintiff made a subsequent agreement with defendant, whereby defendant was to pay for the materials furnished. Defendant had the right to do this under the express terms of his contract with Killian, in which he reserved the right "to see that said money, or so much as may be necessary, shall be applied to the payment of material and labor." Moreover, the contract provided that payments to Killian were to be made "upon production of material, bills and time books," which afforded defendant ample means of protecting himself.
Judgment affirmed. *Page 361