
    Case 56. — ACTION BY JOHN McHENRY AND ANOTHER AGAINST ED. C. TERRELL, TO ENFORCE A MECHANIC’S’. LIEN.
    November 15.
    Terrell v. McHenry, &c.
    Appeal from McCracken Circuit Court.
    W. M. Reed, Circuit Judge,
    Judgment for plaintiff. Defendant appeals.
    Reversed.
    1. Mechanics’ Liens — Contract—Terms—Evidence—Evidence in. a suit to enforce a mechanic’s lien for a roof held to show that it was put on under a contract that it should not be paid for if it leaked.
    2. Same — Right of Subcontractors — Under Ky. Stats. 1903, sec. 2463, providing that mechanics’ liens shall not be for more-in the aggregate than the contract price of the original contractor, the subcontractor, as well as the contractor, is not •entitled to a lien for any amount; the contract being to put on a roof to be paid for only in case it did not leak within 30 days, or was thereafter stopped from leaking, and it not haying been made so it would leak.
    IRA JULIAN for appellant.
    On the facts proven -we think it clear that the judgment is erroneous, and 'should be reversed. Appellee is not entitled to full pay for this roofing, or for putting it on, or for freight, because the condition upon which it was to be paid for has never been complied with; or, in other word's, the condition precedent to payment has not been performed. Or if the court would put it the other way, the warranty made and the condition of the warranty is 'such (30 'days’ trial) that nothing can be demanded, and 'he has been damaged probably more than the value of the roof would have been if sound.
    QUIULEY & MOCQ.UOT for appellees.
    1. The subcontractor, Miller, is entitled to his claim, whatever may have been the contract between Terrell and McHenry.
    2. The damage to feed and 'stock could not properly be plead •as a counterclaim in the action.
    3. Measure of damages for breach of warranty is the difference in value between the goods furnished and that contracted to be furnished.
    4. Acceptance of personal property after inspection, or a reasonable opportunity to inspect, makes the purchaser liable for the contract price.
    AUTHORITIES CITED.
    Bailey, &c. v. Hightower, 22 Ky. Law Rep., 88; sec. 96, Code of Prac.; Nolle v. Thompson, 3 Metcalf, 121; Jonesi &c. v. Mc-Ewen, 91 Ky., 373.
   Opinion by

Chief Justice Hobson

Reversing.

Ed C. Terrell was putting up a livery stable in Paducah. John McHenry was agent for a paper roofing manufactured by a concern in Chicago, known as “Climax Roofing,” composed of felt, asphalt, and sand. By an arrangement between Terrell and McHenry the stable was covered with this roofing. Terrell declined to pay for the roof, and thereupon McHenry, who had made the contract with Terrell, and C. J. Miller, who liad pnt the roof on under a contract made by him with McHenry, filed mechanics’’ liens against the property and brought this suit to-enforce them. Terrell defended the suit on the ground that he had entered into a contract with McHenry, whereby McHenry agreed to furnish to hint and have placed on his stable the roof in question at. a certain price and leave the same for 30 days, and. if the roof did not leak in that time Terrell was then to pay him therefor, but if it did leak during that time-he was not to pay him for it, nor until it was stopped from leaking. He alleged that the roofing was of inferior and defective quality, and was placed on the-roof in an unworkmanlike manner; that it leaked within 30 days; that McHenry and Miller were at once notified of its condition, and undertook to stop-the-leaks, but failed to do so, and the roof has continued to leak since. He pleaded a counterclaim for the damage to his property by reason of the leaky roof. His version of the contract was denied by McHenry and Miller, and, the case being heard, after proof was taken, the court gave judgment in favor of the plaintiffs, and the defendant appeals.

The proof shows that Terrell knew nothing about the roof which was recommended by McHenry. McHenry, being asked if he guaranteed the roof to Terrell, said that he told Terrell that if the roof was put on properly it could not leak. He says he simply-sold the material toTerrell. On the other hand, Terrell swears positively that the contract between him and McHenry was. as set out in his answer, and in this statement he was confirmed by his brother, who took part in the making of the contract. The testimony of the Terrells is sustained by a number of circumstances in the record. McHenry began the negotiations with Terrell on a steamboat. He there told Terrell that he understood that be was putting up a. large building, and that he had the agency for roofing manufactured in Chicago, and would like to show him some samples of it. After this he saw Terrell again and the contract was made. McHenry made the contract with Miller to put on the roofing, and', on one Saturday, while Miller was putting it on, he' went to Terrell to get money to pay his hands. Terrell told him that he was not to pay for the roof if it; leaked in 30 days, and refused to pay him. When the roof leaked Terrell notified McHenry, and McHenry and Miller made a number of efforts to stop the leaks,, which were unsuccessful.' Finally, when Terrell kept complaining of the roof, McHenry said to him, “I told you that you did not have to pay for that roof' until it quit leaking. ’ ’ The material was all shipped from Chicago to McHenry. McHenry paid the-freight on it. McHenry made the contract with Miller, and Terrell had no communication with him.' McHenry was anxious to have his roof tried, and Terrell did not know anything about it. These circumstances give weight to the testimony of the Terrells, to the effect that McHenry guaranteed the roof and agreed that 'Terrell was not to pay for it if it leaked within 30 days. That the roof leaked, and leaked badly, is clearly shown by the evidence. When the-paper was put on there were, as Miller, says, a hundred holes in it. These holes were patched, but the-patching according to other witnesses, did not stand. At any rate, water came through the roof to such an extent under the evidence as to render it valueless as a roof. As between Terrell and McHenry, there can,. under the evidence, be no recovery in favor of Mc-Plenry against Terhell.

It is insisted that Miller, who did the work, is entitled to a lien as a subcontractor, although McHenry, under whom he worked, is not entitled to recover. We can not concur in this construction of the statute. Miller was employed by McHenry, and, while McHenry says that he employed Miller at the request of Terrell the evidence does not sustain him in this, Miller, having been employed by McHenry, must look to McHenry for his pay. If McHenry was entitled to any lien on the house, Miller would be entitled to the benefit of that lien; but if McHenry has no claim which he can enforce, and never had any, there is nothing for Miller’s right to attach to. If McIIenxy had had a claim he could enforce against Terrell, and Terrell had paid McHenry, leaving Miller unpaid, a different -question would be presented. But where a contractor fails to carry out his contract, and the owner of the property does not get what he contracted for, and in fact gets nothing of any value, so that he is in no way liable to the contractor, and never was liable, the subcontractor must look to the person with whom he contracted for his pay. McHenry was to get nothing for the roof if it leaked within 30 days, nor until it was made to stop leaking. Miller, who was a subcontractor under McHenry, is in no better attitude, so far as Terrell is concerned, than McHenry, with whom he contracted. If Miller has a lien for his work, then the company in Chicago which furnished the íxxaterial might also have a lien, and thus Terrell would be in effect required to pay for the roof, although it was guaranteed to him and was valueless. (Parrish v. Christopher, 3 S. W., 603, 8 Ky. Law Rep., 868.)

The statute provides (Ky. Stats., 1903, sec. 2463): “The liens provided for herein shall in no case be for a greater amount in the aggregate than the contract price of the original contractor, and should the aggregate amount of liens exceed the price agreed upon between the original contractor and the owner then there shall be a pro rata distribution of the contract price among said lien holders.” The original com tract price in the case before us was to be nothing if the roof leaked, and therefore there is nothing to prorate among the lienholders. (20 Am. & Eng. Ency. of Law, 362, 444.)

Judgment reversed, and cause remanded, with directions to the circuit court to dismiss the petition.  