Hughes & Co. v. Flint

Citations

• 61 Wash. 460
• 112 P. 633
• 1911 Wash. LEXIS 1103

Syllabus

<p>Appeal — Review—Findings. Findings will not be reversed on appeal because of conflict in the testimony, or because the greater number of witnesses testified to the contrary.</p> <p>Bills and Notes — Holder in Due Course — Payments—Applications — Mechanics’ Liens. Where a check drawn in favor of a building contractor is marked “on contract” and the drawee had notice of the contract and had opened a separate account with the contractor thereon, the drawee on paying the check is not a holder in due course, under Rem. & Bal. Code, § 3443, and cannot apply the payment to other accounts of the contractor.</p> <p>Mechanics’ Liens — Payment—Applications. A materialman receiving a check from a contractor, with notice that it was payment on the building contract, is bound to apply it on the contractor’s account for that building, and cannot divert part of the proceeds to other accounts and claim a lien against the building for the balance.</p> <p>Mechanics’ Liens — Materialmen—Payment—Tender. In an action by a materialman to foreclose a mechanics’ lien for a balance due from the contractor, a tender by the contractor “in full payment,” which includes all that could be charged as a lien against the property, could have been accepted without prejudice, and accordingly relieves the owner from liability, although the tender was insufficient to discharge all claims against the contractor.</p> <p>Mechanics’ Liens — Attorney’s Fees. It is not an abuse of discretion to deny attorney’s fees in an action to foreclose a mechanics’ lien, where tender was made of all sums that could be charged against the property.</p>