Jones v. Shawhan , 4 Watts & Serg. 257 ( 1842 )

The opinion of the Court was delivered by

Gibson, C. J.

— The exceptions to evidence are unfounded. The measurement of the work proved by Sterret, was competent, though different from the claim filed, inasmuch as the plaintiff could recover no more than the amount specified against a purchaser : and M’Turk was interested, because he was the terretenant of one of the houses sought to be affected by the judgment.

The direction that a claimant is not bound to file against one who was not the owner when the building was commenced, is not erroneous. The Act of 1803 provided for debts contracted by the owner, and consequently by him who was owner when the work or material was ordered. That Act was superseded, not to change this provision, but to provide for cases in which the debt has been incurred, not by the owner, but by a builder or contractor. Still, where the owner is himself the builder, the claim must be filed against him, as the person known to the creditor, and not his unknown successor in the title. Though a subsequent terre-tenant has intervened, the claim is necessarily to be filed against his predecessor ; and why should there be another rule for a debt incurred by a contractor ? As there is no reason for a difference, I take it, the name of the original owner may safely be used. But as the claim is against the building instead of the person, and as the name is only a circumstance of description to specify the property and give notice to purchasers, entire accuracy in regard to the ownership may not be indispensable; the more so, as the statute expressly requires no more than the name of the reputed owner, and it might be sufficient to file it against the past, or the present one. It is certain, however, that the name of the owner when the building was commenced, satisfies the requirement of the law. A creditor may have occasion to file one claim against several houses, apportioning to each its part of the general burthen; and how would he be able to dispose of the names of intervening purchasers of separate interests? He ought not to be charged, in such a case, with the difficulty of discriminating; nor could he, perhaps, discriminate, for where the claim is a joint one, the ownership ought to be joint. But having filed his claim against the original owner, the scire facias must conform to it; nor is there a provision for bringing in a purchaser as a terre-tenant. In Anshutz v. M’Clelland, (5 Watts 487), a scire facias was held to lie against a lessee for years only when the claim has been filed against him as the person who employed the claimant. This, too, shows that the tenant of the freehold at the filing of the claim, is not necessarily the person to be named.

There was an apparent scarcity of evidence to fix the time when the materials were delivered; but it was ruled that it might be supplied by the evidence to fix the time when the work was done; and we think the matter was properly left on that footing to the jury.

But it was ruled that the acceptance of the owner’s note in full of the bill did not discharge the building. It was determined in Hart v. Boller, (15 Serg. & Rawle 162), that a new note, without a fresh consideration, is not satisfaction of a preceding one, unless it has been accepted as such; of which, where there is evidence to raise the question, it is the business of the jury to judge, insomuch that it is error to withdraw the decision of it from them; and such is the result of all the cases. Then if a note may lie thus discharged, so may any other simple contract debt; and if the bill was agreed to be paid, in this instance, by the owner’s note, there was an end of it as a foundation of claim against the property. It is true that in Kinsley v. Buchanan, (5 Watts 118), the acceptance of a note without an express stipulation, was not deemed a relinquishment of such a lien; and it is also true that a change in the form of the personal security, will not, of itself,, found a presumption that the note was received as an equivalent for the security afforded by the person and property together. The presumption is that a larger security is not exchanged for a smaller one, but the creditor may nevertheless choose the smaller, when, for instance, it is in a more marketable form; and of the evidence of choice the jury are to judge. By the receipt at the foot of the bill, it appeared that the plaintiff had accepted the owner’s note “ in full of the above;” which certainly was evidence to rebut the presumption, and ought to have been left to the jury.

Whether one of the plaintiffs who was present when the property was subsequently sold, had encouraged a bidder who purchased and is now a party in interest, was properly submitted as a question of fact. The claim might have been postponed by positive encouragement; but a mere omission to proclaim it when the plaintiff had given all the notice of it which the law required, would not have had the same effect. The' claimant merely said the work was well done; and this, if said with truth, was no more than he had a right to say. But it was also in evidence that the claim had been positively asserted.

In a case like this, where the claimants were themselves the contractors, it is not easy to comprehend the prayer for direction, that a claim can be filed only against the claimant and the contractor together. If it be meant to show that the plaintiffs had no right to file a claim at all, it was properly put; for it is he who has found the labour or material, and not he who has ordered it, that is entitled to the lien. Were the contractor, as well as the mechanic or material men, allowed to file, there might be double liens and possibly double recoveries, which the law does not tolerate. By reason of the novelty of the subject, it happened that the first act fell short of the object in omitting to secure those who, bargaining with a middleman, had not an opportunity to secure themselves, (Serg. on Mech. Liens 2), in consequence of which it was displaced by the Act of 1806, which provided for those who directly furnished materials and labour, and not for the middleman, who took his own security and furnished nothing but his superintendence and skill as an undertaker. Indeed so different is his position as a contractor, from that of a claimant, that his name is required to be inserted in the claim as a respondent. The plaintiffs, therefore, had no right to file for anything furnished pursuant to their contract as undertakers; though they might have done so for any additional work or materials directly furnished by themselves.

The remaining point is disposed of by Barnes v. Wright, (2 Whart. 193), in which it was ruled that one scire facias cannot be maintained for a claim apportioned among several houses. The object of the present writ is to have joint execution of an apportioned lien on distinct dwellings; and had there been a demurrer, or motion in arrest of judgment, it must have prevailed. Even now, the want of a cause of action is assignable for error; and the judgment might be reversed for that alone.

Judgment reversed.