Brainerd

Appeal by defendant from a judgment and an order denying a new trial.

The trial court finds that the defendant entered into a valid contract with Graham & Eaton, for the construction of a building according to certain plans and specifications. Plaintiff as subcontractor entered into a contract with the original contractor for the installation of an elevator and engine according to such plans and specifications, and was to he paid for as follows: One-half on delivery of engine, one-fourth on the completion and acceptance of said elevator, one-fourth thirty-five days after completion and acceptance thereof. That plaintiff' furnished all materials and labor and com pleted the installation of said elevator and engine on or about December 15, 1905. Defendants Graham & Eaton paid all the contract price except the thirty-five day payment, which remained unpaid. That within ninety days after completion of the building plaintiff regularly filed its notice of lien as required by the statute; that no notice of completion after actual completion was ever filed and recorded by the -owner; that when said notice of lien was filed the defendant had in his hands a sum applicable to the payment of…