No. 27 | Del. Super. Ct. | Dec 12, 1922
delivering the opinion of the Court:
By the first exception it is contended that the work and labor was not done nor the materials furnished on the credit of the building or structure but on the credit of three promissory notes of John J. Raskob, each for $50,000.00, and each payable six months after date, which were given to the contractor as a first payment on account of the contract. It is, in effect, claimed that the acceptance of the notes was a waiver of the right to lien the property. We cannot so construe such acceptance. The amended statute (Laws of Delaware, Vol. 29, page 728) provides
“(4) It is agreed by and between the parties hereto that as a first payment to the party of the second part, the party of the first part shall and will, simultaneously with the execution hereof, deliver to the party of the second part three promissory notes of John J. Raskob, payable to the party of the first part, six months from date, each for the sum of Fifty Thousand Dollars ($50,000.00), which notes are to be discounted by the party of the second part, and the proceeds thereof credited as a cash payment by the party of the first part, on account of this contract. Subsequent payments shall be made by the party of the first part as the work progresses, and as called for by the party of the second part, upon reasonable notice given to the party of the first part.”
It will be noted that the contract provides that the notes in question were given and accepted as a “first payment” to be ■ credited as a cash payment “on account” of the contract which then provides for the making of subsequent payments. Even assuming that the notes were taken in pro tanto “payment”, under the contract we are of the opinion that unless the payment by the notes was in full or in satisfaction of the contract price that the right to be a lien is not impaired although the amount of the lien might be diminished. In this case the contract was for two- separate structures, — a wharf and a sugar refinery, — and the statement of the plaintiff shows the application of the proceeds of the notes to the cost of the wharf, for which no lien is claimed. The contention of the defendant if carried to a logical conclusion would mean that no mechanic’s lien could be had where there had been a part payment in advance on account of the contract price.
In Duncan Brothers v. Aaron, 6 Houst. 566, the Court held that while the work must have been done and materials furnished on the credit of the building, yet releases given were only evidences
In Pickering v. Day, 3 Houst. 474, at 537, 95 Am. Dec. 291, the Court of errors and appeals held that if no specific appropriation of payments be made by the debtor at the time of making the payment, then the right of appropriation is devolved upon the creditor, and he may make it as he may think proper at any time before an account is settled between them or before action brought, provided such appropriation is not manifestly inequitable in respect to third persons. This principle was expressly adopted in a mechanic’s lien proceeding in McCartney, Kenney & Co. v. Buck, 8 Houst. 34, at 46, 12 Atl. 717.
The second, third and fourth exceptions suggest that the contract, statement or Bill of Particulars attached thereto either contain non-lienable items or that the lienable and nonlienable items are inseparably commingled. They will, therefore, be considered together. In Perkins, Admr., v. Wilson, 1 Marv. 196, 40 Atl. 950, it was held that the fact that a Bill of Particulars in mechanic’s lien contained non-lienable as well as lienable items did not render the statement invalid where the items were not inseparably intermingled. In that case the items were not so intermingled. An intelligent discussion of the matter can only be had by a correct understanding of the functions of the statement, bill of particulars and exceptions. No express rules cover them and the statute is silent as to their purposes except as to the statement. It is an interesting fact that the first mechanic’s lien act of 1861 (Laws of Delaware, Vol. 12, pp. 181 & 213) expressly provided for a Bill of Particulars accompanied by an affidavit setting out the grounds of claim. On these a writ of summons was issued “as in an action of assumpsit for work and labor or materials furnished.” Subsequent proceedings as to judgment for want of affidavit of defense were had as in other actions accompanied by an affidavit of demand. The similarity between mechanic’s liens and other actions was pointed out in the first case under the original act, Capelle & Duncan v. Baker’s Ex., 3 Houst. 344. This decision held that a judgment in mechanic’s lien constituted a
The original proceeding having been an action of assumpsit and a Bill.of Particulars being by it required, the practice of filing a Bill of Particulars has been adhered to and, in fact, has been required as to materials in all subsequent amendments or substitutes. In France v. Woolston, 4 Houst. 557, the Court held, after mechanic’s lien had been made a scire facias action, that a Bill of Particulars was not necessary where the materials had been fully and expressly contracted for as to quantity and price. Its office or function must, therefore, be considered as an amplification of the pleading or statement intended to give to the opposite party the particulars of the claim, especially where such claim consisted of items of work and labor or where no express contract provided for the quantity and price of materials. While a Bill of Particulars is a part of the pleading with which it is connected to the extent that it must relate thereto and be construed with reference to it, yet it is in no sense such a component part of the record that subsequent pleadings may be directed to it alone. Its office is to give notice of the particulars of the claim and for the restriction of evidence. A demurrer does not lie to a Bill of Particulars, and an amendment of the Bill of Particulars does not amend the pleading with which it is connected or change the issue raised by such pleading. A declaration is no more demurrable after the filing of a Bill of Particulars than it was before such filing. Vila v. Weston, 33 Conn. 42; Cicotte v. Wayne Co., 44 Mich. 173, 6 N. W.
Exceptions in a mechanic’s lien proceeding are strongly analogous to a demurrer, and their office is to point out defects in the statement itself rather than in the particulars of such claim. The particulars, as has been held, are sometimes dispensed with, and if those to which a party is entitled are not intelligible or sufficient he can upon application obtain greater particularity as in ordinary assumpsit actions, but he cannot by exceptions directed to a Bill of Particulars strike out the whole lien or claim. These exceptions must, therefore, be overruled.
Applying the principle of the function of the exceptions as hereinbefore set out, and considering that the contract between the parties does not provide for a fixed compensation, we are of the opinion that the fact that any recovery by the claimant would be based on a quantum meruit does not destroy the right to such recovery. Voightman v. Wil. Trust Bldg. Corp., 7 Penn. 265, 78 Atl. 920, and Hawthorne v. Murray, 3 Boyce 349, 84 Atl. 5, both hold that a mechanic’s lien suit is not an action on the written contract between the parties, but is an action in the nature of an action of assumpsit for the price and value of work, labor and materials furnished by the claimant. The fifth exception must, therefore, be overruled.
The sixth exception goes rather to the amount of the lien to be recovered than to the question of the right to obtain a lien and cannot, therefore, be made the basis of a refusal of any lien.
The seventh exception is too general.
All of the exceptions are, therefore, overruled.