McCartney, Kenny & Co. v. Lewis P. Buck & Co.

The first question to be determined is a vital one. Were the articles, supplied by the plaintiffs, furnished on the credit of the building ? If not, the plaintiffs are not entitled to your verdict. The solution of this question depends upon the evidence in the case. The mere statement in a plaintiff’s book of accounts, that materials delivered by him are to be used in the erection, alteration, or repair of a building, is not, by itself alone, evidence sufficient to constitute the lien contemplated by the statute; a book of accounts, under our law and practice in the courts, being simply evidence, when supplemented by the oath of the party to whom they belong, of the sale and delivery of the goods charged, and their price. It is necessary that such plaintiff should establish the fact of the credit, given upon the building in course of erection, in some other way. Since the passage of the Act of Assembly, allowing parties to be witnessess in their own cases, he may'do this by his own oath alone, provided sufficient credit be given to it by a jury. And the defendant may give proof, by his oath, to the contrary." In this case you have the oaths respectfully of the plaintiff, Kenny, and the defendant, Buck, which are at variance, the defendant stating that at the time he made the payment of $1,100, it was understood that it was received to pay for certain plush which he had ordered; and that the plaintiffs had agreed to supply, and that the goods ordered were to be supplied by the plaintiffs, on the credit of the firm of Lewis P. Buck & Co., of which he was a member, or words to that effect. The plaintiff Kenny, denies that altogether, and says his firm furnished the materials, for which the lien is sought, upon the credit of the bulling alone. Here then is a direct conflict of testimony, and it is your duty, as sworn jurors, to decide to which statement' your confidence shall be given. It is a very difficult, and delicate matter as well, for a jury to decide between opposite statements by single witnesses, but not infrequently there are circumstances in proof, more or less corroborative in the character of the oath of one of the defendants. Where such exist they are to be taken into account by the jury, and given such weight as, in their

judgment, they are entitled to. Of course, where they really tend to support his statements, they give to his side (if there be none to sustain the oath of his opponent) additional consequence or weight, so that a jury will yield to the influence which such circumstances require. But if there are also circumstances of support to the testimony of the other party, then the oaths and circumstances of each side must be weighed in opposite scales in the minds of the jury, and true credit given where it seems to belong. Let us.apply these considerations to the case before us. It is a fact, in this case, that the subject of giving the credit for the materials bargained for to the building, is not shown to have been mentioned between Kenny and Buck. That is to be considered. It was sworn to by the latter, that the payment he made of $1,100 was required because the former said the plush ordered could not be bought without the cash, and that he must have $1,300 as a cash payment. A large amount of plush, (which is a costly article,) was required. Afterwards it was agreed between them that the sum of $1,100 should be accepted as the cash payment. The money was paid by Buck’s check on the 4th of December, 1885. A receipt for this money payment was given by the one firm, which in so many words stated that the payment was for plush, drapery, etc. The defendants counsel contend before you, that the demand from the defendants of so large a money payment as $1,100, of itself shows that the claim of any materials being furnished in fact upon the credit alone of the building in process of erection, is a mere pretense. They point you to the fact, in support of this contention, that, before the claim in this case was filed, the plaintiffs brought an action of replevin, as it is called, to regain the possession of many of the identical articles mentioned in their claim of lien. They insist that such a step, especially as it was taken by the counsel who are now prosecuting this mechanic’s lien claim for the plaintiffs, is wholly inconsistent with their present position as claimants of a lien under an allegation that the things sought to be obtained in that way were delivered on the credit of the building. For they argue, if they were

delivered on the credit of the building, they were out of the power of any writ to restore them to the plaintiffs, but in their possession, with the further contention that, if they were delivered on the credit of the building, that fact was as well known when the replevin was brought, (which was before the mechanic’s lein was filed) as it was when such lien was filed. Whether the circumstances of the demand of cash payment on the bill to be supplied, and the fact of remedy being sought by replevin to regain possession of the goods, are facts supportative of the defendants’ contention that the credit was to the firm and not to the building, it is for you to decide. If you should believe that they are, then you have their weight to add to the oath of the defendant, Buck on the side of his firm. I do not remember that any fact or circumstance was given in evidence before you in support of the oath of the plaintiff. If any were it escaped my attention, but you will doubtless remember it and give it due weight; and I feel it proper to say to you that both the testifying witnesses mentioned are parties to this proceed- • ing, and are therefore supposed at least to be not so free from bias of interest as indifferent witnesses are. You should consider that fact in making up your verdict.

The next question to consider is this : Were the articles supplied such as are contemplated by the mechanic’s lien law ? That is purely a question of law, upon which I will proceed to give you the law as we understand it; and you must be guided in that respect by what we say to you upon that point. I feel it not improper to say that very soon after the mechanic’s lien laws were passed in the different States which created them, strong disposition was developed by the courts, which were called upon to interpret them, to give a more liberal interpretation, so great, indeed, as to divert their language from its obvious meaning, and make it express a great deal that certainly could not have been in the contemplation of those who employed it, or they would have been more profuse in their expressions. Most, if not all these laws, give the • right to lien where materials and work, or both, were to be fur™

nished in the•“ erection, alteration, or repair of buildings or structures.” Now, these words would seem to be quite plain in their signfication, and insusceptible of any interpretation but the common one of building, altering, or repairing a house. Words in a statute even, are to be taken in their usual sense in which they are understood by people generally, unless there be some technical sense in which they must be considered in order to give the intended effect to the law; or the circumstances under which they are employed warrant applying a different sense to them. Not very long after our act was passed, the latitude of construction, to which I have referred, was also to be applied by this Court in interpreting it; but keeping in mind, as the Court did, the true office of a Court, which interpretation,—not by procrastination to make law a deliverance,—was made by it through my learned brother on my right, which has been the settled rule with the statute now under consideration from the time of that case, (Cap elle v. Baker, 3 Houst., 344 ,) to the present day. I will read the part of the judgment of the Court to which I refer, (at page 356 :) “ It is to us a matter of regret, that we have not had an opportunity to examine more fully the statutes and ruling of Pennsylvania on the subject. But, as this is the first enactment of the kind we have ever had in this State, and is a new and untried experiment of no little gravity and importance to the people of it, and is introduced as a novelty into the general code and body of our laws without any legislative explanation or definition of the operation and effect which it is to have in relation to them, or to what extent it is incidentally to vary or modify them, we cannot implicitly rely on the decisions of any other State, under similar enactments, for our guidance or instruction under such circumstances, or follow them any further in the interpretation and construction of it than our own best judgment and reason and reflection may approve as intrinsically right and proper in such a case. Both our inclination and conviction of duty, therefore, is not to extend the operation of the act by construction any further than the terms of it clearly require, and to leave it to the

legislature to remedy whatever defect or deficiencies may be found to attend it when put into practical operation and effect.” We are therefore not to stretch the act beyond the limit fixed by it. While this is a true rule, yet, in the interpretation of all statutes not penal, some liberty is allowed by rules of construction, where it appears to a Court that no violance will be done to the plain meaning of the words used, and the Court is constrained to believe that such liberty can be taken in a case within the evident contemplation of the framers of the law. Accordingly in a case, (France v. Wools-ton, 4 Houst., 557 ,) where glazing and painting were sought to be brought within the scope of the act, the Court allowed it to be done. The building would not be habitable without the glazing, nor the wood protected from decay without the painting. No violence was done to the meaning of the legislature by that, but when an attempt was made to so interpret the act as to make it include an architect’s bill for a plan of a building, the Court refused to allow it. It would seem very unreasonable to allow a claim like the present to come under the Mechanic’s Lien Law, when one so apparently essential to the proper erection of a building, an architects plan, according to which the structure was built, was refused. The strong language read to you from the case of Cabelle v. Baker with superadded decision denying the architect the benefit of a lien, was, in all probability, the reason for the enactment in the fourth section of a new Mechanic’s Lien Law in the place of the old one, which is in these words: “ 16 Laws Del. c. 145. An act in relation to mechanic’s liens. Section 4. The provisions of this act are hereby declared to extend to work and labor performed and furnished, or materials furnished in plumbing, gas-fitting, paper-hanging, paving, wharf-building, and to iron works and machinery of every kind, in mills and factories, and to bridges, and shall be as well by and against corporations as individuals.”

Now, in view of this section, it is quite impossible for this Court, having regard to its dtity of interpretation, to refuse to yield to the claim of the plaintiff, that the articles included in this pro

ceeding, nor any of them, come within the meaning of the lien law. It would be apparently a usurpation of the functions of the legislature, looking toward what they felt called upon to do, to enlarge the scope of the act by expressly bringing within it such materials as plumbing, gas-fitting, paving, wharf-building, etc., to say that the things claimed here are materials also of like nature, or quality of service, etc. We therefore say to you that the law does not cover or include them. But it being agreed by the defendants’ counsel that so much of the plush (whatever quantity that has been shown to be) as made the drop curtain of the Academy, may be treated as materials within the provision of the act, you may consider them as such. Their counsel, however, contend that though they may be so treated, yet that the said plush being the first item of the bill, and not amounting in value to so much as the cash payment of $1,100, it was settled for by such payment and therefore there is no claim in existence. In support of this contention, you are pointed by them to the language of the .receipt for the money. The plush was used in the curtain and the draperies in and around certain boxes, according to the testimony. A part, also, was used elsewhere, but it is claimed by the defendants’ counsel that the cash payment covered the whole of it. It is for you to decide, upon examination, whether this be true or not. The counsel for the plaintiffs insist that this curtain was not paid for by the cash advance, because they claim that their clients had the right to apply that payment, as they allege they did, to the extinction of such of the items of their whole account as were not, as they express it, lienable items. A great many books have been read and commented on, and much has been said on both sides on the subject of appropriation of payments; but we may disregard all decisions elsewhere upon the subject, relying upon our own. One important case has arisen in this State, when the Court of Chancery first and the Court of Appeals afterwards, gave utterance to their views upon this subject. In both the rule i4 laid down, and must be our and your guide in this case, that when there are different claims,

and payments are made without direction by the debtor how it shall be applied, the creditor may apply it to which of them he chooses, at any time before account settled or suit brought; if he does not exercise his right, the court will apply it, as the right of the law requires. Both sides claim to have made the appropriation in this case. The defendants contend that their Mr. Buck made it by his check in pursuance of the plaintiffs’ demand of cash payment, which they claim was to put the plaintiffs in funds to buy plush with ; and also by the evidence the receipt gives that it was to pay for the plush, drapery, etc., and therefore that it could not be applied without his consent to anything else. On the other hand, the plaintiffs contend that the receipt, notwithstanding its particular language, was only meant to be a general payment on the whole bill. We express no opinion upon this matter, as we have no right to give any, leaving it entirely to you to decide which contention, under all the proof and circumstances, is, of the two, the more consistent therewith. If you adopt the view of the plaintiffs, then they are entitled to your verdict, for the value of the plush that went into the making of the drop curtain; but if, on the contrary, you adopt that of the defendants, they are entitled to your verdict. But if it was a general credit to the whole bill, why specify any items ? That question is for you.

Verdict for the plaintiff.