527

alleged, or where the only difference between the original and the amended complaint is in the statement of the manner in which the amount to be paid should be determined,528 the amendment does not set out a new cause of action. But an amendment changing the cause of action, or introducing new parties defendant, cannot be made after the time for beginning suit has expired.52 The error of allowing such amendment cannot, however, be taken advantage of by a defendant who was made a party within the statutory time.530

DIVISION V. DEFENSES.

In General.

§ 578. The defenses that may be made to an action to enforce a mechanic's lien have already been somewhat considered in discussing the subject of the defendant's pleadings. 531 In general, any matter is a good defense which tends to disprove the existence of the debt or the validity of the lien. Payment is, of course, a good defense, but the subject of payment will be treated of more at length in another place.532 Proof of payment of more than the price stipulated in the contract is a good defense to the lien, although there were extras that brought up the price to a larger sum than stipulated. 533 In a proceeding under the New York law by a subcontractor to enforce a lien, the owner will be allowed payments made to the contractor in good faith, although in advance of the terms

527 Phoenix Mut. Life Ins. Co. v. Batchen, 6 Ill. App. 638. 528 Davis v. Johnson, 36 Pac. 887, 4 Colo. App. 545.

529 Seibs v. Engelhardt, 78 Ala. 508; Dunphy v. Riddle, 86 Ill. 22; Crow] v. Nagle, Id. 437; Clark v. Manning, 95 Ill. 580, 4 Ill. App. 649; Haines v. Chandler, 26 Ill. App. 400; Dinkins v. Bowers, 49 Miss. 219; Bombeck v. Devorss, 19 Mo. App. 38. Contra, Manly v. Downing, 19 N. W. 601, 15 Neb. 641; Newman v. Railway Co., 19 Mo. App. 100.

530 Green v. Clifford, 29 Pac. 331, 94 Cal. 49.

531 See ante, §§ 562-570.

532 See post. § 735.

Where the amount agreed to be

533 Potshnisky v. Krempkan, 26 Tex. 307. paid for the erection of the buildings was $24,000, and it is admitted that the owner had paid his contractor $38,700 before notice of the claimant's lien was filed, the claimant is not entitled to judgment against the owner. Kennedy v. Paine, 1 E. D. Smith (N. Y.) 651.

534

of the contract, and before notice of the filing. And it has been held that where the owner had in good faith paid the contractor, and the contractor had paid the subcontractor in full for his work and materials, a person who furnished material and did work for the subcontractor was not entitled to a mechanic's lien, though one installment was yet unpaid by the owner to the contractor.535 But it is held in Wisconsin that payments made after issue had been joined in the foreclosure proceedings should not be allowed as a defense or set-off, though such payments might, on proper showing, be credited upon the judgment, when rendered.536 It is a good defense to a suit by a contractor that he agreed to take his pay in property, and that defendant has always been ready to pay him in that way. Under a statute giving liens only to mechanics, it is a good defense that the plaintiff is not a mechanic.538 It is a good defense that the plaintiff has taken a note for his account, has negotiated the note, and has not produced it at the trial,539 or that the person who owned the property at the time suit was begun is not made a party,540 or that the person causing the improvement to be made had no interest in the land,541 or that there are prior liens sufficient to absorb all the amount still due,542 or that there has been a former adjudication in favor of the defendant,543 or that the claim was filed too late.54 The owner may show in defense of an action to enforce a lien for labor or materials furnished his contractor that the labor or material was furnished to the contractor personally, and not as agent for the owner, and that no lien has been obtained on account of the poor work done by said contractor and his subcon

537

544

534 Post v. Campbell, 18 Hun (N. Y.) 51.

535 French v. Bauer, 32 N. E. 77, 134 N. Y. 548.

536 North v. La Flesh, 41 N. W. 633, 73 Wis. 520.

537 Pierce v. Marple, 23 Atl. 1008, 148 Pa. St. 69; Dowdney v. McCullom, 59 N. Y. 367, affirming 5 Daly, 240.

538 Gaskill v. Davis, 66 Ga. 665.

539 Clement v. Newton, 78 Ill. 427.

540 Clark v. Brown, 25 Mo. 559. But see ante, § 527.

541 Babbitt v. Condon, 27 N. J. Law, 154; Davis v. Stratton, 1 Phila. 289. 542 Lehretter v. Koffman, 1 E. D. Smith (N. Y.) 664.

543 Sullivan v. Brewster, 1 E. D. Smith (N. Y.) 681; Whelan v. Hill, 2 Whart. (Pa.) 118.

544 In re Lien on 740 Broadway, 15 Abb. Prac. (N. S.) 336. See ante, § 466.

546

545

tractor. A sale pending suit under a mortgage which is superior to the lien constitutes a good defense to the lien foreclosure. In a recent case in Michigan it appeared that a contractor purchased from G. materials worth $60, which were used elsewhere, in addition to materials used in defendant's building, and, on the day he received $1,500 from defendant, paid G. $75 on account out of it. G. credited the $75 on the $60 account, and the balance, $15, on the building account, and in this form swore to the latter as correct, with the intention of collecting the whole amount from defendant company. On these facts the court held that the action of G. was such an attempted fraud on defendant as to defeat his lien."

Premature Suit.

547

§ 579. Any matter that would constitute a good defense to an action of assumpsit on the account which is the basis of the lien is a good defense to a suit to foreclose the lien, since, if nothing is due the plaintiff, he is, of course, not entitled to relief. Thus, if the account is not due when the suit was begun, there can be no recovery. And this defense may be set up by other defendants than the debtor.549 It has been held in Pennsylvania that where a lien creditor takes from his debtor a note payable at a future day, on account of his claim, the law raises no implication that he agrees to give time until the maturity of the note for the payment of the

548

545 Hoagland v. Van Etten, 35 N. W. 869, 22 Neb. 681.

546 Green v. Sprague, 11 N. E. 859, 120 Ill. 416.

547 Hannah & Lay Mercantile Co. v. Mosser (Mich.) 62 N. W. 1120.

548 Hicks v. Branton, 21 Ark. 186; Pitt v. Acosta, 18 Fla. 270; Kinney v. Hudnut, 3 Ill. 472; Cox v. Keiser, 15 Ill. App. 432; Thomas v. Turner, 16 Md. 105; Sullivan v. Brewster, 1 E. D. Smith (N. Y.) 681; Spalding v. King, Id. 717; Pendleburg v. Meade, Id. 728. But it has recently been held in New York that a statutory provision that a claim may be filed in anticipation of work to be done and materials to be furnished, and that an action must be commenced to foreclose the lien within a certain time after it is filed, authorizes a judgment for items which were not due when the action was commenced. Ringle v. Iron Works, 32 N. Y. Supp. 1011, 85 Hun, 279. And in Virginia, a contractor whose pay falls due in installments may enforce a lien for an overdue installment, although some installments are not yet due. Iaege v. Bos

sieux, 15 Grat. (Va.) 83.

549 Thomas v. Turner, 16 Md. 105.

original debt; but the agreement must be proved as a fact, dependent upon the understanding of the parties at the time when the se curity was given, and that if no such agreement is proved the lien. creditor may begin suit to foreclose his lien before the note matures.550 But in Illinois taking a note or acceptance suspends the right of action on the lien until the note or acceptance falls due.551 If an owner who has contracted to pay by note due in six months fails to give the note, the debt does not become immediately due, and no right of action arises on the lien until expiration of the six months.552 Under statutes allowing suit to be begun 10 days after serving notice or filing claim, a suit begun before expiration of such 10 days is premature. Under a statute declaring that an owner shall not be liable to suit by a contractor until 60 days after completion of the building, a suit begun during such 60 days is premature, even though the contract provided that the contractor should be paid before the building was done.554 A complaint which is prematurely filed under such a statute may, in Nebraska, be withdrawn, and refiled after expiration of the 60 days.555

553

Defenses in Suits by Subcontractors.

§ 580. If the principal contractor is liable to the owner, in damages, for breach of contract in putting up the building, to an amount exceeding what is due on the contract price, a subcontractor, who by statute is entitled to have the owner, upon notice from him, retain enough to pay him, from what is due to the contractor, provided the contractor himself has a lien, can claim nothing.556 But, where the building contract specifically provides just what deductions shall be made for certain omissions, the owner cannot, as against a subcontractor, assert the right to make any greater deductions. 557

550 Shaw v. Presbyterian Church, 39 Pa. St. 226.

551 Cox v. Keiser, 15 Ill. App. 432.

552 Pitt v. Acosta, 18 Fla. 270.

553 Darrow v. Morgan, 65 N. Y. 333; Knickerbocker Ice Co. v. Kirkpatrick, 51 Ill. App. 60.

554 Perry v. Conroy, 22 Kan. 716; Treat v. Sutliff, 24 Kan. 35.

555 Millsap v. Ball, 46 N. W. 1125, 30 Neb. 728.

556 Parrish v. Christopher (Ky.) 3 S. W. 603.

557 Gillen v. Hubbard, 2 Hilt. (N. Y.) 303.

558

Where the owner fails, after notice, to retain out of the sum due the contractor an amount sufficient to pay the subcontractor, and refuses to pay the subcontractor, thereby giving him, under the stat ute, an immediate right of action, it is no defense thereto that the contractor has not yet finished his contract.5 Under statutes giving subcontractors a direct lien, it is no defense to a suit to enforce such lien that the owner owed the contractor nothing when the subcontractor gave notice of his lien, and when he began his suit.5 In Missouri it is a good defense to a suit by a subcontractor that he has not had his debt ascertained by obtaining a personal judgment against the contractor.5

560

559

Insufficient Defenses.

561

§ 581. It is no defense to a suit to enforce a mechanic's lien that a personal action to recover the debt is pending," or that such action has resulted in a judgment for the plaintiff,562 even though such judgment be against a third person. And a lien claimant who has begun suit to enforce his lien after a suit was begun by another claimant, in which, though served with notice, he did not ap

563

558 Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 14 S. E. 35, 109 N. C. 658.

559 Reeves v. Henderson, 18 S. W. 242, 90 Tenn. 521.

560 Crane Co. v. Hanley, 53 Mo. App. 540.

561 Culver v. Elwell, 73 Ill. 536; Parmelee v. Railroad Co., 13 Lea (Tenn.) 600. Conversely, the pendency of a suit to foreclose the lien is no bar to a personal action on the debt. Hall v. Bennett, 48 N. Y. Super. Ct. 302; Gridley v. Rowland, 1 E. D. Smith (N. Y.) 670.

562 Powell v. Manufacturing Co., 1 Kulp (Pa.) 92; Dickson v. Corbett, 11 Nev. 277. But a judgment for the defendant in such action would bar a subsequent suit to enforce the lien. Whelan v. Hill, 2 Whart. (Pa.) 118. And a statute providing that an action to foreclose a mortgage "shall not be commenced or maintained," where a judgment has been recovered at law for the mortgage debt, until execution issued on the judgment is returned unsatisfied, applies to actions to foreclose mechanics' liens under an act which declares that the manner and form of instituting and prosecuting actions to foreclose mechanics' liens "shall be the same as in actions for the foreclosure of mortgages on real property," as the provision of said statute is merely a rule of procedure; the right to sue not being abolished thereby, but only suspended. Barbig v. Kick (Com. Pl.) 35 N. Y. Supp. 676.

663 Dickson v. Corbett, 11 Nev. 277.