By the court, I think this cause was properly disposed of by the county court, upon the ground assumed by that court. Mrs. Yates contracted solely with the contractor Smith, and by the terms of that contract she was to pay when called upon as the work progressed, and did pay from time to time to Smith, or upon his order, and on the llth of December, 1862, upon the assumption that the work ivas completed, paid $390, which was claimed by Smith, and supposed by Mrs. Yates to be the balance due upon the contract, and took a receipt in full. No work was done to the house after that payment save the delivery of two pairs of blinds, which occurred on the 13th of February, 1863. It can hardly be successfully contended that the mere delay of the blinds for a period of about two months, prevented the parties (Yates and Smith) from considering the contract completed. At all events, Mrs, Yates acted upon the assumption that the work was done, and paid her money accordingly, and in the absence of fraud or collusion on her part was entitled to protection, unless Thompson by his vigilance had acquired a valid lien upon the property prior to such payment. She paid pursuant to her contract, and to the only person with whom she had contracted. There was no privity of contract between Thompson and herself. She had never agreed to pay him a dollar, and he could only reach the money in her hands by force of a lien legally created previous to payment by her. It is the misfortune of Thompson that he proceeded with the work without taking the precaution to make Mrs. Yates by agreement liable to him, instead of depending upon Smith for compensation. It is the province of the *150court to construe and enforce, but not make contracts for parties. The statute in relation to such liens (Laws of 1854, p. 1086, § 3), clearly contemplates the right of the owner to pay the contractor prior to the creation of a lien, provided there is no collusion between the owner and contractor with a view to defraud the sub-contractor. I fail to discover evidence of such collusion, which required the county court to submit that question to a jury, nor was there any other question upon which the jury should have passed. There was no error committed by the county court in the disposition of the cause, and the judgment should be affirmed with costs. As the question considered was the only one passed upon by the court below, I do not deem it advisable to discuss the other questions presented by the respondent.
Ingalls, J.