The firm of McLaughlin Co. sued John H. Muller to enforce a materialman's lien against a house and lot of defendant for $71, and to recover the sum named, alleging service of notice at a time when he owed the contractor a sum sufficient to cover plaintiff's claim. Defendant answered denying the allegations of plaintiff and averred that the property on which the lien was sought to be fixed was homestead. The court, sitting without a jury, gave plaintiff a personal judgment for the sum claimed, but held that there was no lien.
Defendant has appealed and claims here that in no event could there be a personal judgment against him, and no lien being established judgment should have been for defendant.
Briefly stated the facts are as follows: The property was the homestead of defendant. He entered into a written contract with Munson Co. to erect a house thereon. The contractors employed Ben Mounds as a subcontractor to do certain parts of the work. Plaintiffs as materialmen furnished Mounds certain material to the value of $71 which was actually used in the construction of the house. Plaintiffs served upon defendants a written statement of the material thus furnished but did nothing further toward fixing their lien.
At the time the notice was served defendant had ample funds due the contractor. He afterwards settled with the contractor in full, not withholding any sum for plaintiff, but took a bond from the contractor to indemnify him against this or any other claim of laborers or materialmen. This suit is being defended in behalf of and at the expense of others than defendants. Defendant admitted that his plea of homestead would not be good against the contractors.
The case seems to come within the provisions of articles 3305, 3306 and 3307 of the Revised Statutes as construed by our courts. The first article above cited provides for notice to the owner as given in this case. The second declares that the liability of the owner may thus be fixed. The third requires the owner in such case to furnish the contractor with a copy of the account thus served, in which event, if the contractor does not within ten days give the owner a written notice that he will contest the claim, the owner may pay it when it falls due. In Delauney v. Butler, 55 S.W. Rep., 752, the exact point was ruled in plaintiff's contention here.
We are of opinion the judgment should be affirmed, and it is so ordered.
Affirmed. *Page 452
ON MOTION FOR REHEARING.