Robison

This action was by a materialman to foreclose his lien upon the property of defendant Fawkes for material furnished in the construction of a frame dwelling. Judgment passed for plaintiff, awarding him a lien, and from that judgment and from the order denying his motion for a new trial the defendant Fawkes appeals.

The contractors for the construction of. the building were copartners doing business under the firm name of J. Burris Mitchel & Company. Their contract with appellant was in writing and valid. It contained the usual stipulation for partial payments, and provided that if at any time during the progress of the work the contractors should refuse or neglect, without fault of the owner, to supply a sufficiency of material and workmen to complete the contract within the time limited, for the period of more than three days after having been notified by the owner in writing to furnish the same, the owner should have power to furnish and provide the material or workmen to finish the work, and the reasonable expense thereof should be deducted from the contract price. It also provided that if the owner should delay a progress payment for more than five days after the date when…