Consolidated Cut Stone Co. v. Seidenbach , 181 Okla. 578 ( 1937 )

I dissent from paragraphs 2 and 7 of the syllabus of the majority opinion. I am of the view that the rule announced in J.B. Klein Iron Foundry Co. v. Mays, 76 Okla. 177,184 P. 577, controls and is decisive of the question of the right of the owner, Seidenbach, to offset his claim for damages for delay in completion of the building against the lien claimants for the reason that said rule of law, in my opinion, is erroneous, and under the facts in this case I do not believe that said rule has any application for the reason that the contract provides for damages for delay in the completion of said building and that the contractor "hereby agrees to allow and pay out of any balance that may then remain due and payable to him" certain damages for delay.

I dissent from that portion of the opinion declining a lien to Patterson Steel Company for the rental of certain "pans" used in the construction of said building for the reason that it appears that it contracted to furnish certain materials and furnish the labor in putting the same in place.

Otherwise, I concur in the majority opinion.