ON PETITION FOR REHEARING.
AILSHIE, C. J.Appellants have filed a petition for rehearing, and insist that since the court in the original opinion held that there was no evidence in the record to support the finding made by the trial court to the effect that the house and porch were constructed under one and the same contract, the findings are therefore necessarily rendered insufficient to support the judgment. In order for-the plaintiff to recover, it was necessary for it to establish that it furnished the material to the contractor under one continuous contract with him, and that the lien was filed within the statutory time after furnishing the material. It is possible for this to be true, and still two or more contracts to have been made and to have existed between the owner of the building and the contractor or builder. Now, in so far as this finding has reference to the contract or contracts between the owner of the premises and the contractor, it is not supported by the evidence, for the reason that the evidence clearly shows that there was one contract for the main building and another and separate contract foB the porch. On the other hand, in so far as the finding had reference to the contract between the builder and the company furnishing the material, we hold that the finding is supported by the evidence. In this view of the case the findings are still sufficient to support the judgment.
*681But the appellants insist that as soon as they succeeded in establishing the fact that the material furnished was used by the contractor upon two separate and distinct contracts which he had with the owner of the building and premises, they then shifted the burden of showing want of knowledge that two separate contracts existed on to the materialman, the respondent in this case. We do not think that would be a correct view to take of the law or the proper practice to adopt. When the plaintiff, who is seeking to foreclose his lien, establishes the fact that he furnished the material to the contractor under one arrangement and contract with him, and has presented sufficient evidence to make his case on that theory, then if the defendant seeks to defeat the right of recovery on the ground that there were two separate and distinct contracts, after showing their existence, he should be required to either show that the materialman had actual knowledge that two contracts existed, or else prove such facts and circumstances either by way of lapse of time, cessation of work, occupation of the building and premises by the owner, settlement of accounts, or other circumstances that would amount to constructive notice to the materialman and put him on his inquiry to ascertain that two contracts did in fact exist. In this case, as said in the original opinion, there are a number of circumstances which tend to show that the plaintiff had notice of the completion of the original contract, and that aiiother contract had been entered into between the owner and the builder; but the court found in substance against the appellants’ contention and in favor of the respondent, and we would not be justified, under the evidence as disclosed in interfering with that finding.
Appellants urge that they ought to be granted a new trial in order to enable them to establish the fact that the lumber (jompany had actual notice of the completion of the contract and the making of the second contract. We are unable, however, to find anything in the record that would justify us in doing so. The court seems to have admitted all the evidence that appellants offered tending to establish the fact that .the company had notice. There is nothing in the rec*682ord which indicates or tends to indicate that the’ appellants could make any stronger case on that issue than they have already made. We do not find anything in the petition which changes our view of the case or that would justify us in granting a rehearing. The petition is denied.
Sullivan, J., concurs.