Davidson & Case Lumber Co. v. Anderson

Citations

• 106 Kan. 213
• 187 P. 872
• 1920 Kan. LEXIS 488

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Concrete Forms Used in Construction of Building — Ownership — Subcontractor’s Chattel Mortgage Valid. In the erection of a building a subcontractor who had undertaken to furnish and install the forms into which concrete was to be poured, sublet this part of the work to a second subcontractor. In the contract between them it was stipulated that if the second subcontractor failed in the performance of the contract, the first subcontractor would be at liberty, after three days’ notice to the second, to terminate the employment, enter upon the premises and complete the work, and for that purpose might take possession of all material, tools, and appliances thereon, and to charge the expense of completion to the defaulting subcontractor. After a part of the work had been done, the second subcontractor became unable to proceed with the building, and a notice was served upon him by the first subcontractor that if at the end of three days the second did not resume and continue performance of the contract, the first expected to have the work performed and the contract fulfilled, and would charge the second with the expense ‘so incurred. Before the lapse of the three-day period, the second subcontractor executed a chattel mortgage on the forms to parties who had furnished lumber for the forms and money with which to pay laborers on the building. In a controversy between them as to the right of possession of the forms, it is held that the second subcontractor had a right to and held the possession of the forms until three days after the notice was given, and that under the mortgage executed by him to the mortgagees, the latter obtained a superior right to the possession of the mortgaged property.</p> <p>2. Same — Knowledge of Mortgagee. The fact that the mortgagee knew that the mortgagor was a subcontractor, and further, that he had ceased to work upon the building, did not impair the validity of the mortgage that was executed or t