This was an action brought below by O. W. Bennett, receiver of The Enterprise Lumber Co., a material man, against an owner for money judgment, under Section 8324 et seq., of the General Code of Ohio.
The material man, in his petition, claims that he furnished the head contractor certain materials for a building then being constructed for the plaintiff in error, William F. Richards; that he gave the requisite notice in sufficient time; that thereafter payments became due the head contractor from the owner and the owner neglected to retain a sufficient amount to cover his, the material man’s, claim and that thereby, under the statute, the owner became liable for the payment of the claim.
*241The cause was tried below by the court without the intervention of a jury. The court made separate findings of fact and law, giving the material man, plaintiff below, a judgment for the full amount of his claim with interest. The finding of fact shows that after the notice was served upon the owner, -in compliance with the provisions of the mechanic’s lien law, Mr. Richards made payments to the head contractor upon estimates by the architect, as he had done before and as provided for in the contract. In so doing he failed to comply with the provision of Section 8325, which reads as follows:
“Upon receiving the notice required by the next preceding section, such owner, board or officer or public authority or authorized clerk, agent or attorney thereof, shall detain in his hands all subsequent payments from the principal or subcontractor to secure such claims and the claims and estimates of other subcontractors, material men, laborers, mechanics, or persons furnishing materials to or performing labor for any contractor or subcontractor who intervenes before the next subsequent payment under the contract, or within ten days thereafter.”
While it may be true that the payments made in this case to the architect were made in good faith and only embraced the money necessary to meet the payroll and to pay for material necessary for the completion of the building, yet it constitutes an evasion or violation of the plain language of the section above quoted. To permit this to be done in any particular case would open the door for collusion *242and fraud and result in nullifying the inhibition of said section.
We think, therefore, that the judgment below is correct and should be affirmed.
Judgment affirmed.