Pickering

Action to foreclose a material-man’s lien. Appellants are the owners, and the defense interposed by them was that of payment.

From a judgment and decree in favor of plaintiffs the appeal is prosecuted.

The ease is presented for review on a stipulation of facts, settled as a bill of exceptions. The facts thus stipulated follow:

It might be noted that the materials furnished by plaintiff and used in the construction of the house, comprised lumber, cement, plastering materials, sand and gravel, hardware and hardwood flooring of the value indicated, namely $1311.04. In passing, it might be fair to assume that the materials thus furnished, practically embraced the entire materials ordinarily used in the construction of a $3,500 house.

Counsel argue that the question presented may be considered as one of first impression in this state, though there seems much authority from other jurisdictions. These authorities are in apparent conflict, and leave our course, to a great degree, uncharted. We may, however, accept the general rule to be that in the absence of anything appearing as to the source of the fund from which a contractor makes payments, a payment made by a contractor to a…