Taylor

The plaintiffs were the general contractors for the erection of a building for the defendant Wm. J. King. This action was brought for the purpose of foreclosing a mechanic’s lien for the last payment in the sum of $5,700. Judgment was rendered for the defendants and plaintiffs prosecute this appeal.

The contract, after stating the times for and the amounts of the first three payments, reads with respect to the final payment as follows:

As already suggested, the appellants contend that they did not waive their lien rights by taking a note and argue that the acceptance of a note does not, in the absence of an express agreement, operate to discharge or extinguish the debt. There can be no doubt upon the statement of the general rule of law contained in counsel's argument, but it does not necessarily follow that the trial court was in error in finding an express agreement to discharge the debt and thus waive the lien. Without reviewing the testimony let us observe that the contract says: “4. in payment of five thousand seven hundred 00/100 dollars (5700.00/100) to he paid on the following terms and conditions: One promissory note of $5700.00/100,” etc. Let us also have in mind the…