Pell v. Bauer — 45 N.Y. St. Rep. 241

Majority

p. 241

Charles E. Pell, Resp’t, v. Christian Bauer, App’lt.^[1]

(Court of Appeals,

Filed May 24, 1892.)

Headnote

Mechanic's lien.

T., a carpenter, and B., a mason, made separate proposals for the work upon the house of S. which were accepted by the latter, but when the contract came to be drawn they requested that a joint contract be drawn between them and the owner, to save time and for convenience only. During the work T. bought a bill of lumber of plaintiffs, they knowing that he was a contractor building the house or that the lumber was to be used in it. When the work was done over §5,000 was due from the owner to T. -and B., against which plaintiffs filed their lien which would exhaust not only T.’s shave but a large part of that coming to B. Held, that although this was not a joint adventure of T. and B., yet as the lumber was furnished and used for the building with the assent of the owner and both contractors, and as B. availed himself of it pro'tanto in earning the contract price, -he was under the joint contract as much bound to furnish it as T. and this gave plaintiff- a right to'file his lien for the amount of his debt upon the unpaid portion of the contract price.

Appeal from judgment, of the city court of Brooklyn, general term, affirming judgment for plaintiff rendered upon a trial before the court without a jury.

II. M. Hi takings, for app’lt; Andreiu Shiland, Jr., for resp’t.

We agree with the conclusion of the general term that the 'judgment rendered upon foreclosure of the plaintiff’s lien was right, while not concurring in all respects with the reasons-assigned. Thornton and Bauer, the former a carpenter and the-latter a mason, had entered into a joint contract with Schloen to build upon his land a house for the price of nineteen thousand and fifty dollars, the work to be done according to certain specifications, and payments to be made at agreed points in its progress. As between themselves there was no agreement of partnership and no community of interest in profit or loss. The owner had called for separate proposals for the carpenter work and the mason work, in response to which Thornton had offered to do the former for $9,800, and Bauer the latter for $9,250, and these offers had been accepted by the owner. But when the contracts came to be drawn Thornton and Bauer requested that their several agreements should be merged in one joint contract as between them and the owner. This was done to save time and for convenience, and without any purpose or agreement to change their relations-with each other beyond what was necessarily involved in their becoming joint contractors. They could become such without being pártners or establishing through that relation an authority by which one could primarily bind the other. Alger v. Raymond, 7 Bosw., 418 .

During the progress of the work Thornton bought of the plaintiffs a bill of lumber which was used in the construction of the house. Apparently they sold to him and trusted him, and may not have known, at the time, of the existence or terms of the joint contract, but they did know that Thornton was a contractor, building the house for its owner, and that the lumber was to be used for that construction. In the end, when the work was done, something over $55,000 remained due from the owner to the contractors, which he stands ready to pay to the parties entitled, but the plaintiffs have filed a lien as sub-contractors, and it turns out, that in order to pay them not' only is the separate amount coming '-to Thornton exhausted, but a very serious part of that coming to-Bauer is also required, and the latter resists the foreclosure to-that extent, claiming that he is not bound to make good Thornton’s contract

We cannot join with the general term in saying that the two-contractors in the joint adventure were partners, or held themselves out to the plaintiffs as such. It may be that even if Thornton had no primary right to bind Bauer upon the lumber purchase upon the principles of agency which underlie a partnership relation, yet that he became liable upon the ground of ratification ; that having accepted the lumber and assented to its use in performance of the joint contract and availed himself of its benefit in earning the contract price, he adopted Thornton’s contract and ratified his action ; and that idea seems to pervade the-opinion below. But without going to that extent, we prefer to sustain the judgment upon the provisions of the lien law solely and alone. That law, to some extent, moves outside of the legal contract relation. It takes up an imperfect equity and regulates-

p. 243

and enforces it, although between sub-contractor and owner there is no agreement whatever. Proceeding upon the idea that he who furnishes material for or does labor upon a building should be reimbursed to some just extent out of the improvement of which the owner gets the benefit, it gives him a lien upon the property as security for the proper payment. All that the statute requires as the condition of the lienor’s right to such reimbursement is that the labor shall be done upon or the material furnished for the building in process of construction with the assent of the owner or of the contractors. Laws of 1885, chap. 342, § 1.

Both conditions were established in this case. The lumber was so furnished and used. It was done with the assent of both contractors. Bauer knew that it was supplied for use in the performance of the joint contract; saw it so used not only without objection but availing himself of it pro tanto in earning the contract price; consciously took the benefit wAich it conferred; and so .assented to its supply. Under the joint contract and relatively to the right of the owner, Bauer was as much bound to furnish it as Thornton, and might have been obliged to furnish it himself if Thornton had not. It is, therefore, impossible to deny that the plaintiffs furnished the lumber used in construction and applied in the due performance of the joint contract with the assent of the contractors, not merely of one but of both, and so the conditions -existed which under the law gave the sub-contractor a lien for the amount of his debt upon the unpaid portion of the contract price. If, as a consequence, Bauer suffers for Thornton’s default, that is the consequence of his joint contract and of the position in which he suffered himself to be placed. We are, therefore, of -opinion that the judgment should be affirmed, with costs.

All concur.