
    I. Smith & Son Company, appellant, v. Lois C. Parsons et al., appellees.
    Filed September 26, 1893.
    No. 4695.
    1. Mechanics’ Liens: Waiver by Acceptance oe Note. The acceptance by a mechanic or material-man of the note of the debtor, or of a third person, for the amount of the debt maturing within the time fixed by statute for the enforcement of’a mechanic’s lien, is not alone sufficient to raise any presumption of the extinguishment of the original debt, or of the abandonment or relinquishment of the statutory right to a lien, but an' agreement must be shown that it should have that effect. >
    2. -: -. Where a person entitled to a mechanic’s lien expressly agrees to and does accept a note-of. a third person in fuli discharge of the amount due, lie thereby abandons his lien.
    Appeal from tbe district court of Perkins county.' Heard below before Church, J. /
    
      W. 8. Morían, for- appellant.
    
      C. C. Williams and A. F. Parsons, contra.
    
   Nqryal, J.

The plaintiff prosecutes this action to foreclose a me-' chanic’s lien upon real estate held by the defendant, Lois C. Parsons, under and by virtue of a contract of purchase made with the Lincoln Land Company. The premises5 constitute the homestead of the said Lois C. and her hús-’ band, Albert E.-Parsons. The Lincoln Land Company, the' Parsons, and also all persons claiming mechanics’ liens upon5 the property, were made defendants. Plaintiff furnished5 materials for the erection of a dwelling upon the real.éstate’ in controversy, and afterwards perfected its lien by filingai duly verified account of the materials so furnished in • the5 office of the county clerk of Perkins county. The Parsonsi answered, setting up as a defense that the plaintiff waived the statutory lien by the acceptance of the note of the defendant, Albert F. Parsons, in full payment of the debt secured by said lien. The court found that plaintiff accepted and received said note in full discharge and payment of said lien and debt. Upon the facts so found, it was adjudged that the property was not subject to a mechanic’s lien in favor of the plaintiff.

That Mr. Parsons executed and delivered his note to the plaintiff, calling for $612.65, and that said sum covered the amount for which a lien was asked, and also a small account for coal, is undisputed. It was stipulated on the trial that plaintiff is entitled to a foreclosure for the amount claimed in the petition, unless the right to a lien was discharged by the taking of the note above alluded to.

It will not be presumed, from the mere acceptance by a mechanic or material-man of the note of the debtor, or of a third person, for the amount of the debt maturing within the period allowed by statute for the bringing of a suit to enforce a mechanic’s lien, that the same was taken in payment of the debt; but in the absence of any proof upon the subject the presumption is that it was not so taken, and that it was not intended to operate as an abandonment or relinquishment of the statutory right to a lien. (Milwain v. Sanford, 3 Minn., 92; Poter v. Talcott, 1 Conn., 359; Goble v. Gale, 7 Blackf. [Ind.], 218.)

It was decided in Hoagland v. Lusk, 33 Neb., 376, that a mechanic’s lien for materials furnished for the erection of a building under a contract with the owner is not waived by the acceptance of the promissory note of the debtor secured by a chattel mortgage, unless such was the intention of the parties. It is plain that the taking of distinct security is not inconsistent with an intention that the lien given by the statute shall also be enforceable, as both kinds of security may exist at the same time. As between the parties, the question of waiver is largely one of intent.

There can be no doubt, upon principle as well as authority, that the acceptance by the creditor of the promissory mote of a third person, in pursuance of an agreement or •understanding that the same should be received as a payment and discharge of the original demand, waives the lien. (Phillips, Mechanics’ Liens, sec. 275; Crooks v. Finney, 39 O. St., 57; McCoy v. Quick, 30 Wis., 530.) The burden of proof is upon the debtor to show, by clear and convincing proof, that the creditor so agreed. (Merrick v. Boury, 4 O. St., 60; Leach v. Church, 15 Id., 169.)

Applying the foregoing principles to the facts before us, how stands the case at bar? The testimony in the record bearing upon the question of waiver is conflicting. It would be unprofitable to discuss at length the evidence, or to set out the same in detail in this opinion. A brief reference to the testimony of the principal witnesses will be sufficient. Mr. Parsons testified, in substance, that a few days before the taking of the note he had a conversation with one B. H. Smith, the secretary and treasurer of plaintiff, in regard to the payment of the lien; that during this talk it was agreed between them that witness should give his note in full satisfaction of the debt secured by said lien; that at said time Mr. Smith informed witness that plaintiff had filed a mechanic’s lien but did not desire to foreclose it, stating, further, “We don’t want to put you to the trouble, and if you will give us a note in payment of that claim it will save us that trouble and we will not have to do it, and will be relieved from that necessity.” Mr. Parsons further testified that a few days after said conversation he gave his note to plaintiff in pursuance of said agreement. There is some other testimony in the record, although it is meager, which tends to corroborate the witness Parsons. B. H. Smith testified, expressly denying having any such conversation with Mr. Parsons, and further that it was never agreed or understood between the parties that Parsons should give his note in satisfaction of the debt, but that the same was taken for the sole purpose of showing that the account for materials which went into the construction of the house was correct. It was the pi’ovinceof the district court to decide upon the conflicting testimony. This court invariably refuses to molest the findings of the trial court on questions of fact, unless they are manifestly against the clear preponderance of the testimony. This rule has been stated so frequently that it has-become trite. We consider the finding of the trial court was justified by the evidence, and the judgment is

Affirmed., ,-

The other judges concur.  