I concur in the judgment, because, in addition to the reasons given by Mr. Justice McKinstry, I think the Court below erred in finding that the contractor was indebted to the plaintiff on the 22nd of April, 1877, in the sum of $600, for a balance due for the bricks which the plaintiff had furnished for the construction of the building of the defendant.
The admissions of the plaintiff in the asserted lien, and those in the complaint, as to the value of the bricks, and the proofs of the plaintiff as to the money which he had received from time to time on account of them, conclusively show that the contractor was not indebted to the plaintiff, at the utmost, more than $375. And assuming it to be true, as in the asserted lien it is stated and verified by the oath of the plaintiff, that the plaintiff commenced to furnish bricks for the building on the 20th of February, 1877, and continued to furnish them from time to time until the 14th of April, 1877, it is not proven that the contractor was indebted to the plaintiff in any sum whatever for which the defendant would be legally chargeable in *645this action. It is true that the Court finds that the plaintiff applied a portion of the money which he received from the contractor on account of the bricks, to the satisfaction of a balance of an open general account which he had had against the contractor ; and in that way it finds the sum of $600 to have been due the plaintiff. But the plaintiff had no authority to make such an application of the money. He could not legally apply any portion of it to extinguish an obligation arising out of general dealings between himself and the contractor, unconnected with the contract under which he was furnishing bricks for the defendant.
All payments made by the owner of a building to his contractor, and those made by the contractor to a material-man for materials furnished to be used in a building, should be applied in satisfaction of the original contract. Neither the contractor, nor a material-man, nor workman upon a building, can legally apply any portion of such payments to the satisfaction of general debts or demands existing between himself and others who may be entitled to file liens upon the building against the owner. If that could bo done, it would have the effect of subjecting the owner to payment of other debts between the contractor and his employees, outside of his building contract.
Mr. Justice Ross being disqualified, did not take part in this decision.