BIRD, V. C.
Mr. Dudley, for complainant.
Mr. Blackwood, for J. J. Foster.
BIRD, V. C. The complainant, Foster, and the defendant Rudderow entered into a building contract, by which the latter was to build a house for the former. Rudderow failed to complete the contract, and Foster completed it himself. I will assume that, at the time of the failure of R, to complete his work, there were $1,370.92 due to him, and remaining due when the work was done. Under the third section of the mechanic's lien law several of the creditors of R. took proceedings to secure their claims by making demand of R., and giving notice to Foster of R.'s refusal to pay, and that they intended to look to him for payment. Before any of these notices were served, one of the defendants, J. Gibson McIlvane, obtained an order from R. on F. for the amount of his claim, $582.02, which he presented to F., but which F. refused to accept or pay. The order was drawn against this contract, and made chargeable to that account. It bears date February 18, 1885. I find the sum of $582.02, with interest from February 18, 1885, is due to J. G. McIlvane, and is to be first paid by Foster out of the funds in hand.
W. H. Harrison & Bro. had a claim of $198, for which they demanded payment March 3, 1885, and was refused. Of this, notice was given to Foster. This claim had been proved before me. The proceedings bring it within the third section of the statute. It must be allowed, with interest from March 3, A. D. 1885.
The next demand on R., in order of time, was made by Robert Lersieau on March 10, 1885, for $583.03. It is disputed whether the whole amount of this claim was due from R. to L. The whole amount was furnished to the house, but R. swears that $80 of the amount was no part of his contract with L., but was furnished to the complainant, Foster, under an independent contract. Of this R. speaks very positively. L. was sworn, but did not satisfactorily overcome R.'s denial. Foster, the owner, was not sworn. As the testimony stands, I must consider the items making up the $80 as extras. For such extras the contract provides a method of settlement and payment. There is no evidence that that method was pursued. That not being done, it is impossible for me to say that the demand on R. was not properly disregarded by him, and of course F. would not be protected in paying. The court can only enforce the payment of such demands as could be enforced between the parties themselves. This claim must therefore be rejected upon the proof now before me.
Mr. J. J. Foster made the next demand, March 13, 1885, for $349.98. This demand was not made by him in person, but by Mr. Blackwood, to whom he had sent the claim for collection, and who made a writtendemand, signed by himself, in Foster's name, and not by Foster, without any written authority to show that R. would be justified in making payment to him. It seems to me R., properly refused to pay, and there-lore I cannot advise that the complainant pay this claim.