Page:North Dakota Reports (vol. 2).pdf/275

ing, erection, or other improvement.” The unquestioned facts are these: One Gordon was the owner of certain lots in the city of Grand Forks, upon which he desired to erect an hotel building. On Angust 12, 1889, he commenced the erection of said building. August 17, 1889, Gordon executed to the appellant a mortgage upon said lots for the sum of $10,550. That said mortgage was properly recorded on August 19, 1889. That in October, 1889, Gordon entered into a contract with the respondent, by which respondent agreed to place a steam heating apparatus in said building, which was furnished and put in place in November and December of that year, and before the completion of the building; and within the required time respondent furnished and filed the necessary documents to perpetuate its lien for the unpaid amount due for such heating apparatus. The appellant introduced certain evidence, which, on motion of respondent, was subsequently stricken out by the court as immaterial. This action of the court is assigned as error. The rejected evidence showed that before the building was commenced Gordon procured an architect to make plans and specifications therefor; that there was no general contractor for the erection of the building, but that Gordon contracted with various parties for different lines of material and work as the same were needed; that said plans and specifications were always used as the basis upon which such contracts were made; that said plans and specifications contemplated heating said building with stoves, and not by steam, but included a smoke stack for future use, as it would be cheaper to put it in then than afterwards; that said plans and specifications, and the submission of bids by different contractors thereunder, formed the basis upon which appellant made the loan to Gordon; that after such loan was perfected, and the mortgage executed an‘ recorded, the plans for said building were so far changed as to substitute a steam heating apparatus for stoves; that said change was made at the solicitation of respondent’s agent, and when made, and when the contract for the steam heating apparatus was entered into, respondent had both actual and constructive notice of the mortgage to the appellant. This statement uncovers the contention of the parties. Respondent