Newell v. Haworth

The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— So far as we can discover upon the facts given to us in this rather meagre paper-book, we cannot say the court below committed any error. The action was for the price of certain articles furnished by the plaintiff under a special contract to be let into an interest in the lease of an oil-well property. The court very distinctly instructed the jury that the plaintiff could not recover except upon a rescission of the special agreement, as the consequence of the defendant’s refusal to comply with the contract. The only error assigned arises upon an alleged lien for repairs done at the instance of the plaintiff to the engine furnished by him under the contract, and upon which a sale of the engine, tools, &c., took place. The error alleged is, that the court instructed the jury that if the contract was made and the property delivered to the defendant, and he had the possession of, and was using it before and at the time the work was done or materials furnished as set forth in the lien, then the lien and sale under it can have no effect upon the conclusion of the jury. The conclusion meant was of course the conclusion of the jury upon the question of rescission under the prior instruction of the court. The court then added: “ In such case it was the defendant’s business to take care of his property against any pretended lien.” Now there was- no error in this, unless the plaintiff stood in a relation to the property to enable him to charge it with a lien or encumbrance for the repairs done to the engine. The plaintiff in error has not furnished us with the lease under which he held the oil-well, or with a copy of the lien filed. If, as nearly all these leases are, the lease in question was for a long term of years or perpetual, no interest in the lease was acquired by the plaintiff below, his contract being by parol, and made void by the Statute of Frauds as to the estate bargained for. So far as we know anything of the mechanics’ claim, it was filed against Haworth, the plaintiff, alone. It does not appear that he was set forth as contractor^ and Newell, the defendant, as owner. Now by the Act of 8th April 1868, applicable to Yeriango county only, under which this proceeding took place, the “ lien shall extend, as to said lot or leasehold, only to the interest of the tenant or tenants, lessee or lessees thereon.” The act further provides that the person entitled to a lien shall set forth in his statement of claim the names of the party claimant, and of the owner or reputed owner of the property, and the name of the person with whom the contract was made, and for whom the work was done or materials furnished. So far as we can discover, therefore, from the book before us, Haworth, against whom the lien was filed, was neither a lessee nor tenant of the property against which the lien was filed; nor a person described in the claim as a contractor on behalf of Newell, the owner or reputed owner. Under these circumstances the plaintiff in error cannot ask us to convict the judge of error.

Judgment affirmed.