December 8, 1892.
Damages arising from poor work by a mechanic in violation of his contract may be shown in recoupment on his petition for a mechanic's lien, or if not so shown may be recovered in a subsequent action on the contract against him.
ASSUMPSIT. On demurrer to the replication.
This action was assumpsit for violation of a contract to build a house, the plaintiffs alleging that the house was badly constructed. The defendant pleaded that before this action he had filed a petition for a mechanic's lien to obtain payment from the plaintiffs' interest in the house, which was carried on to a final decree in equity and settled all questions of payments and contract performance. The plaintiffs replied that in the proceedings under the lien petition they made no claim for the defects of the defendant's work and for their damages caused thereby, which were therefore not taken into account in the lien decrees. The defendant demurred to this replication.
Theodore F. Tillinghast, for plaintiffs.
Harrison A. McKenney, for defendant.
The court is of the opinion that the demurrer to the replication should be overruled. The plaintiffs were not barred by the decree in the lien suit from bringing an action for the damages sustained by the failure of the defendant to comply with his contract. While they might have offered evidence in the lien suit to recoup the damages sustained they were not bound to do so, but were at liberty to reserve their claim and to bring suit on it as they have done. Ives v. Van Epps, 22 Wend. 155, 157; Gillespie v. Torrance, 25 N.Y. 306, 310; Britton v. Turner, 6 N.H. 481, 495; Austin v. Foster, 9 Pick. 341, 346; Ward v. Fellers, 3 Mich. 281, 291; Van Epps v. Harrison, 40 Amer. Decis. 314, 326, note.