Chamberlin-Hunt Academy v. Port Gibson Brick & Manufacturing Co.

| Miss. | Mar 15, 1902

Caliioon, J.,

delivered the opinion of the court.

This is a proceeding by attachment in chancery instituted by appellee, a brick manufacturing company, against the appellants, the Eothroclc Construction Company, a non-resident, and the Chamberlin-Hunt Academy. Its purpose was to subject a debt averred to be owing from the academy to the construction company to the satisfaction of its claim for about $900 against the non-resident construction company, under the provisions of code, §§ 486, 487. The proof showed that the academy never had any contract whatever with the Rothrock Construction Company, an incorporated concern of New York, and never owed it anything. The academy did have a contract with one, Samuel W. Rothrock, who is not made a party, although necessary to the full and complete protection of the academy; and yet the final decree in the cause is simply a personal decree for money, and against the construction company and Samuel W. Rothrock and the academy. We disregard the non-joinder of Samuel W. Rothrock, because not complained of in the pleadings. The proceeding is purely statutory, and there is power only, under code, §§486, 487, to subject tbe indebtedness, and there is no warrant for personal decree. Even in proceedings to foreclose a mortgage there could be no personal decree for the balance unsatisfied from the proceeds of the sale of the mortgaged property, but for a statute authorizing it. There is no statute authorizing such decree in cases of foreign attachment in chancery, as this case is.

We do not decide now whether the lien of mechanics and materialmen can be enforced except by the machinery prescribed by chapter YY, code 1892, and in the circuit court only, by § 2Y02, which machinery is full and ample for all purposes as to residents and non-residents. We do not find that this question is yet decided in our courts, and it is not touched by Otley v. Haviland, 36 Miss., 19" court="Miss." date_filed="1858-10-15" href="https://app.midpage.ai/document/otley-v-haviland-clark--co-8257421?utm_source=webapp" opinion_id="8257421">36 Miss., 19, or by Watkins v. Owens, 47 Miss., 593" court="Miss." date_filed="1873-04-15" href="https://app.midpage.ai/document/watkins-v-owens-7984219?utm_source=webapp" opinion_id="7984219">47 Miss., 593. The trouble in the case before us is that complainant was under the necessity to prove that the academy owed the non-resident, and has not done so. There is not even proof that it owed Samuel W. Eothrock. In fact, the only evidence is to the contrary.

The case is reversed and remanded.

Suggestion of error: After the delivery of the foregoing opinion, H. C. Mounger, counsel for appellee, filed a suggestion of error, making the following points:

(1) The court overlooks the contention, supported by evidence, that there was no such corporation as the Eothrock Construction Company.

(2) The court also seems to have overlooked the fact that complainant sued by the name under which the contract ivas made — the- Eothrock Construction Company; that, if there was any such corporation, S. W. Eothrock was acting as agent in getting the contract; that the Eothrock Construction Company was engaged in the erection of the buildings; and that the academy paid all bills, which were made out against the Eothrock Construction Company. The chancellor took the view that the name Rothrock Construction Company was merely a fictitious name.

(3) The proceeding is not purely statutory, for while it asks for the fixing of the money due under code, §§ 486, 487, 2714 (not § 2702, as the court thinks), it also askes the benefit of the two contracts which were made by the academy with the construction company, or Rothrock, as a third party beneficially interested, although not a party.

(4) As far as the statutory part of the proceeding is concerned, the court seems to have overlooked that the proceeding is founded on § 2714 of the Code, for the protection of materialmen.

(5) Section 2714 does provide for a personal judgment, and appellee was entitled and • got judgment against the academy. A judgment against the construction company or Rothrock did not amount to anything. Appellee is entitled to a judgment or decree for the amount of the indebtedness due from the academy to the construction company or Roth-rock, whichever name he sails under.

(6) Will the court please read § 2714 particulary with this case in view? Section 2702 was not the foundation of this suit.

(7) Section 2714 is not confined to circuit courts. It does not mention circuit court; it merely uses the words “suit” and “court.”

(8) The court seems to have overlooked Dollman v. Moore, 70 Miss., 267" court="Miss." date_filed="1892-10-15" href="https://app.midpage.ai/document/dollman-v-moore-7987290?utm_source=webapp" opinion_id="7987290">70 Miss., 267 12 So., 23); 19 L. R. A., 222, where there was a proceeding precisely like this. We would like for the court to examine the case.

(9) The evidence and pleadings show that there was the sum of $50,000 donated by Mr. McOomb to the OhamberlinHunt Academy to build a school building; that Rothrock could not make his bond, and Mr. McOomb had the academy to enter into a second contract with him, by which it was provided that no money should be paid to Rothrock until all material and labor should be paid for out of this $50,000; that this donation was given on this condition, and under these express terms, and this was the express contract between the academy and Rothrock, and we claim that we are entitled to the benefit of it. 7 Am. & Eng. Ene. Law, p. 106, et seq., and authorities cited in my brief. At the time the notice was served on the academy only about $1,100 of this $50,000 had been paid to Rothrock. As for the contention that there was nothing due, see Rosenbaum v. Carlisle, 78 Miss., 882" court="Miss." date_filed="1901-03-15" href="https://app.midpage.ai/document/rosenbaum-v-carlisle-7988562?utm_source=webapp" opinion_id="7988562">78 Miss., 882 (29 So., 517). This court seems to have overlooked the fact that appellee’s brick were put in the building, and appellee has never been paid for them. We do not see how appellants can get goods, use them, and not pay for them.

The court made the following response to the suggestion of error:

Oali-ioon, J.,

delivered the opinion of the court in response to the suggestion of error:

The fourth clause of the answer of the Rothrock Construction Company, which answer is made a cross-bill, avers that “said company is an incorporated company under the laws of the state of New York, and not a copartnership.” The answer of the Port Gibson Brick and Manufacturing Company to this cross-bill does not deny the averment, and so it follows, on elementary principles, that it must be taken to be incorporated. It is clearly manifest from this record that the academy contracted with Samuel W. Rothrock by name as an individual. The written contract itself shows this, and it nowhere appears that it made any contract with him as agent, or had any sort of notice of any agency. Upon a breach of the contract, no one could contend that the academy could hold anybody liable but Samuel W. Rothrock. This would be true if the construction company was in fact a simple partnership, and Samuel W. Rothrock a partner, because the contract was with the individual.

In proceedings simply to enforce the liens of mechanics and materialmen under code, ch. 77, in the circuit court, it is provided that personal judgment may go for the debt ascertained. The opinion expressly declines to hold that such proceedings must be in the circuit court, and need not have 'referred to it except to .show that the personal judgment feature could not apply in a case like that before us, which is. not a proceeding to enforce such a lien, but is purely and simply one to subject a debt by foreign attachment in chancery under § 486. It is this, and nothing more, and correctly stated to be such in the beginning of counsel’s statement of facts, and again in the very first clause of his written argument. In such cases we adhere to the opinion that a personal decree is not warranted as against the foreign debtor. This conclusion is not affected by Dollman v. Moore, 70 Miss., 270 (12 So., 23), 19 L. R. A., 222. No such decree appears in that case, nor was any such prayed for in the bill. On the contrary, the prayer was for decree that the home debtor pay complainant the amount of the debt due from him to the nonresident out of the funds in his hands dne to the nonresident. If no such debt be owing the nonresident, there ends the jurisdiction under the foreign attachment statute, of course. We had not overlooked the case of Dollman v. Moore, as counsel thinks, nor did we fail to read his brief, as he seems to apprehend. We read the whole of the seventy-five pages of it with care and interest. Neither did we overlook the plain fact that the brick went into the academy’s building, but we cannot see how this can make the academy liable if it owed the contractor nothing when notified of appellee’s claim. There is no hint in the evidence that the academy ever paid a bill not approved by the superintendent, as stipulated in its contract with Samuel W. Eothrock. If it did, it would be liable to Mr. Eothrock for any resultant hurt. In this record the account is not so approved, and yet the superintendent is not made a party to be compelled to approve, and Samuel W. Eothrock, the contractor, is not made a party. It’ is hard to see how the academy would be protected if it paid under the decree below. The fact of the donation by the capitalist cannot affect the situation. Rosenbaum v. Carlisle, 78 Miss., 882 (29 So., 517), is not at all in point here. Of course, a change of agreement between the owner and contractor could not affect rights previously fixed by notice. There is no such case here. We have been thus full out of deference to counsel.

Suggestion of error overruled.