One having a written contract with a landowner, for lathing and plastering a certain building, executed an instrument which, after describing the contract, read as follows: This contract "I hereby transfer and assign to A.B., who will collect the payments according to the contract, and to whom all moneys are to be paid. And I do hereby constitute and appoint the said A.B. and his assigns to be my attorney irrevocable in the premises, to do and perform all acts, matters, and things touching the premises, in the like manner to all intents and purposes as I could if personally present." Below this instrument there was signed by the landowner the following assent: "I assent to above assignment and agree to pay A.B. according to contract." Held, that this instrument was not an assignment of the contract but merely an order or power of attorney to receive the payments under it.
One who has contracted with a landowner to furnish for a round sum labor and materials in the erection of a building, and has given to a third person an order to receive the payments under his contract, which has been accepted by the landowner, does not cease to have a debt due him from the landowner which entitles him to establish a mechanic's lien, since the money earned is due to him who performed the labor and furnished the materials, although he has ordered it paid to another.
MORTON, J.
This is a petition to enforce a mechanic's lien for labor, and is defended by the mortgagee alone. It is admitted that the labor for which a lien is claimed by the petitioner was performed and furnished by him under his contract with Rudnick. The mortgagee contends that the petitioner is not entitled to a lien, because there was nothing due him when he filed the certificate of lien. His contention is, in substance, that the petitioner assigned the contract to Pinkham; that Rudnick assented and agreed to the assignment; that the petitioner ceased to have any interest in the contract; and that what became due under it was due to Pinkham and not to the petitioner; and therefore the statement by the petitioner in the certificate of lien that the account was a just and true account of the amount due him for labor and materials performed and furnished by him was not true. We think that this contention proceeds upon an erroneous view of the effect of the so called assignment. It seems to us that that was in effect merely an order or power of attorney given by the petitioner to Pinkham, and assented and agreed to by Rudnick, authorizing the latter to pay to Pinkham and authorizing Pinkham to receive what should thereafter become due under the contract. There was not in any just sense a novation. There is no suggestion in the so called assignment as there was in the assignment in the case of Derby v. Sanford, 9 Cush. 263, that Pinkham was to undertake the work, and he did not undertake it. On the contrary, the petitioner performed and furnished the labor and materials required by the contract, and could have been compelled, we think, by Rudnick to do so, or to respond in damages. It would be going far, it seems to us, to say on what appears in these exceptions and nothing more, that Rudnick released the petitioner and agreed to look to Pinkham for the performance of the contract, and that Pinkham agreed to perform and furnish the labor and materials required. The contract not having been assigned, the request by the respondent based on the fact that it was assigned was rightly refused.
The respondent contends, further, that there was no debt due to the petitioner. It is no doubt true that to support the lien there must be a debt due to the petitioner. But in case of refusal on the part of Rudnick to pay according to the terms of the order, an action could be brought by the petitioner in his own name for the benefit of Pinkham, and in a just and true sense, therefore, the balance due for labor could be said to be due to the petitioner notwithstanding it was payable according to the terms of the order to Pinkham. It would be strange if a party who had contracted with another to furnish labor and material for a round sum in the erection of a house and who had given an order to a third person which had been accepted by the owner of the house should be held to have lost thereby his right to a lien. The party receiving the order would have no right to a lien because he did not furnish the labor and material, and the result would be that no one would be entitled to a lien. No case has been called to our attention in which such a rule has been laid down.
Exceptions overruled.