
    
      HUNTER ET AL. vs. LEWIS.
    
    If he who has a house to build stipulates that the builder will not claim any payment until the house be finished in a workmanlike manner, the material men and laborers, who have claims against the builder, cannot exercise any right against the owner until the builder complies with his contract.
    Appeal from the court of the first district
    The plaintiffs were employed by Tuthill, who contracted with the defendant to put a roof on his, the defendants warehouse. The suit was brought as well against Tuthill as against the defendant, (the owner of the building) for the price of the work. The petition stated, that the defendant was indebted to Tuthill in an amount , sufficient to pay the plaintiffs demand which was claimed by privilege. The defendant plead the general issue.
    The evidence showed, that the entire roof consisting in part of slate, and in part of boards was put on,, but that the part consisting of boards leaked so much as to be unsafe for storage in wet weather. The work done by the plaintiffs which was of slate, was not complained of, and it was in evidence that the defendant was indebted to Tuthill in án amount sufficient to pay the plaintiffs demand. The defendant contended that he was not bound to pay either . , Tuthill or the plaintiffs, until the whole work was finished in a workmanlike manner. Of this opinion was the court below, and gave judgment accordingly. The plaintiffs appealed.
    
      Dunbar, for appellants. McCaleb, for appellee.
   Martin J.

delivered the opinion of the court The plaintiffs having been employed by Tuthill,to slate the roof of his house, which he had undertaken to build for the defendant, brought suit for his payments against Tuthill, and made the defendant a party, to obtain a privilege on monies which he alleged to be due by him to Tuthill.

The present defendant pleaded the general issue ; that he owed nothing to Tuthill, and notice had been given him by material men, and labourers, that they were unpaid by Tuthill.

Judgment by default against Tuthill. He made a cession of his goods ; placed the plaintiffs on his bilan. They discontinued the suit as to him.

Judgment was finally given for the remaining defendant, and the plaintiffs appealed.

If he who has a house to build stipulates that the builder will not claim any payment until the house be finished in a workmanlike manner, the material men and laborers, who have claims against the builder cannot exercise any right against the owner until the builder complies with his contract.

It appears the district judge was of opinion, that the evidence did not show the defendant was to pay any thing before the work was finished in a workmanlike manner, and neither Tuthill nor the plaintiffs could have any claim till this was effected, which was not yet the case.

It is clear then the case was before him on a question of fact. Several witnesses were heard in court, and it does not appear to us that his decision makes it our duty to interfere.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  