dissenting.
I dissent from the opinion of the majority of the court for the reason that, in my opinion, the record shows that all of the payments made by the owner after the service of notice of the lien upon him by the defendant in error were for labor and material that were necessarily used in the completion of the house, and no money whatever became due to or was paid to the contractor for his own benefit or for his services after the notice of lien. The fact that the owner availed himself of the force of carpenters then working upon the house in the employ of the contractor and that instead of paying them direct he permitted the money to be paid to them through the contractor does not, in my opinion, operate as a payment to the contractor. All of the money paid was to meet these payrolls, the names of the men and the amount of their wages being detailed each week, outside of a few trifling amounts for hauling and materials that were necessary expenses of the work, about which there was no question, and the fact that the architect made estimates in a form similar to his previous estimates to cover these expenses does not change the situation.
Messrs. Dolle, Taylor & O’Donnell, for plaintiff in error. Messrs. Hunt, Bennett & Utter, for defendant in error.The owner was entitled to proceed with the completion of his house in a proper method, and whatever was necessary out of the balance of the contract price to effect this purpose it was proper for him to expend, without liability to the claimant under the subcontractor’s lien.
There is another objection to the claim of defendant in error. The affidavit for lien fails to set out promissory notes that were given covering this claim. Afterwards an order was given by the head contractor to plaintiff in error upon the owner for the payment of the amount due on this work, which the owner failed to accept. This order represented one of the notes which was paid by the credit obtained from the sale of a horse and wagon by the head contractor to the defendant in error, and this lien was in fact thereby satisfied.