Naylor agreed, by his contract of May 28th, 1857, to erect a building for Coe at the corner of Bast and Cherry streets, in this city, according to certain plans and specifications referred to, and which he says were given him at the time, (but were, however, never signed), for the price of $14,000, payable as follows: $9,000 to be paid to sellers of the materials to be used, as the same should be delivered upon the ground, and a receipted bill handed over. The remaining $5,000 when the whole building was finished in every respect, and the same ascertained to be free from claims of any kind for labor or materials; and to be paid by conveying the store No. 14 Moore street to Naylor, subject to a mortgage for $3,850. By a subsequent agreement between the parties, bearing date July 7,1857, an additional story was to be put on the building, to be finished under the directions of Coe, for the sum of $5,500, “ (making the whole cost of the building, when completed, $19,500,) payable as follows: When the materials are placed on the ground $2,750, and when the roof is on and tinned, the rest, or $2,750.” By *386the first contract, it~was expressly agreed on the part of Naylor^ to make any alterations that might be suggested to him, (provided the additional expense of them did not exceed $300), and he was to finish the buildings under the directions of Coe.
Under these contracts the buildings were commenced, and during their progress—under the superintendence of Coe—they were materially altered from the contract or specifications, and although there never was anything said about extra work, or whether the alterations caused any additional expense in their making, the work was proceeded with by Naylor, until Coe had paid out on account of it, in cash, more than the whole contract price. At this time, which was about the 1st of September, 1857 (and during the first week of that month), the parties had a conversation, wherein Naylor stated that, if Coe would pay $22,500, it should be in full of all demands for the building and extra work. By the receipt which Naylor gave about this time, it appears that there had been paid him by Coe, prior to August 17, 1857, $19,500, in'full settlement for building the store in question, as per contract; and from Naylor’s testimony, there is no •doubt that he was paid, in all, $23,642, before he abandoned the building, which was about the 15th of September, 1857, when it was in an unfinished state; and after which the defendant Coe expended about $2,000 in its completion. Subsequent to this abandonment, and after Naylor had been paid not only tire contract price agreed-.on, but also, and in addition, a greater sum than he had agreed to accept in full satisfaction of the contract price and for all extra work performed by him, the plaintiff filed notice of the lien which he now seeks to enforce against the defendant Coe, as owner of the building, for the value of certain materials furnished and used in its construction.
I do not understand how such a claim can be maintained. We have repeatedly held, and such no doubt is the true interpreta- ■ tion of the mechanics’ lien law, that in order to sustain the lien :it must be made to appear affirmatively that at the time of filing ■the notice there was actually due or owing from the owner to the •'Contractor, upon the original contract, a greater sum than the *387amount for which the lien is claimed. Doughty v. Devlin, 1 E. D. Smith, 625; Cronk v. Whittaker, id. 647. And if it appears that the contractor is not entitled to recover upon his contract, by-reason of his having abandoned the work before its completion, or that the work has not been performed in accordance with the contract made with the owner; or if it appears that the owner has paid or settled with the contractor before the notice of lien is filed, the lien creditor cannot maintain his action. Allen v. Carman, 1 E. D. Smith, 692; Cunningham v. Jones, 3 id. 650.
In other words, the lien creditor, by filing his notice of lien, succeeds only to the rights and claims which at the time is possessed by the original contractor, and to no other or greater; consequently, unless a state of facts is shown which, in a proper action, would entitle the original contractor to recover from the owner, the lien creditor cannot recover. Cunningham v. Jones, supra. It is probable, however, that if the owner and contractor should collude together, and agree upon a settlement in respect to the contract price, or the extra work connected with the contract, for the purpose of depriving parties, who -may have contributed their labor or materials to the erection of the building, of the lien which the statute intends to secure to them, the court would be disposed to disregard any settlement, which appeared to have been made for such a purpose; and in determining as to the intent of the parties, evidence showing that the value of the extra work performed was grossly disproportionate to the amount allowed for it on the settlement, might not only raise the presumption. that the settlement was fraudulent in respect to lien creditors, but would, unexplained, afford strong ground for declaring it to be so in fact. Lynch v. Cashman, 3 E. D. Smith, 660; Quimby v. Sloan, 2 id. 594.
As to the settlement, in this case, having been made as shown by the receipt, there can be no doubt. It stands in no way contradicted. But whether the conversation referred to actually took place, is not so certain, as Naylor positively denies it. However, the weight of the evidence is, in my opinion, so clearly against him on this point, that it may be assumed, in the absence *388of any finding, by the judge who tried the cause, to the contrary, as a fact proven in the case. This being so, it seems to me clear that Naylor had no claim against Coe for the erection of the building at the time the plaintiff filed his notice of lien, on September 24, 1857, nor was any money then due him on the contract.
If it be said that the amount allowed for the extra work was disproportionate to its value, where, I ask, is the evidence upon this point ? I am aware that the witnesses Griffith and Frye testify to the value of the carpenters’ and masons’ work in the building being $29,529, but they do not state what part of this value is made up of extra work not contained in or called for by the contract, or what has been added to the value by Coe since Naylor abandoned the work. And even if it were conceded that there had been no such conversation and settlement as alleged, in respect to the extra work, there is no evidence which would justify us in presuming that there is anything owing by Coe to Naylor on account of it; and this being so, I am of opinion that the plaintiff has failed to establish any indebtedness from Coe to Naylor at the time of filing the notice of lien.
But, to go further, I think the evidence establishes, beyond a question, that Naylor abandoned the building and his contract before it was completed; and it cannot be denied that his right to compensation for the extra work is to be determined, in some degree, by the contract to which it was an addition. By that contract he was entitled to no compensation until the work specified in it was entirely performed, and there being no proof that the defendant Coe agreed to accept the building in the unfinished state in which Naylor left it, or that he waived further performance by Naylor of his contract, it is quite clear that Naylor could maintain no action upon the contract, and as the plaintiff,'as lien creditor, succeeds only to the rights of the orig inal contractor, it follows that he cannot. White v. Hewett, 1 E. D. Smith, 395; Neville v. Frost, 2 id. 62; Cunningham v. Jones, supra; Pullman v. Corning, 5 Selden, 93.
Judgment affirmed.