Chapin v. Persse & Brooks Paper Works

30 Conn. 461 | Conn. | 1862

Hinman, C. J.

The plaintiffs, who are dealers in lumber, seek to foreclose a lien claimed by them on three paper mills at Windsor Locks, for the lumber furnished by them for the purpose of repairing the mills. The defendants first make the question whether the plaintiffs are within the class of persons entitled to the privilege of having their debts secured by liens on buildings erected or repaired. It is said that the statute only applies to the cases of contractors or sub-contractors for the erection or repair of buildings, and that as the plaintiffs are neither, but only ordinary venders of lumber, they therefore have no lien; and the fourth and fifth sections of the statute are referred to, as showing that the statute is inapplicable to any other persons. There is not much light thrown upon the question by the language of the fourth section, but in reference to both of them, all that need be said is, that they were enacted at the time the original statute on the subject of mechanics’ liens was first passed. That statute did in fact confine the right to a lien to the cases of contractors or subcontractors for the erection of buildings; and in 1849, when the later statute was passed, which in very explicit terms extends this right of lien to the cases of any person or persons who shall have a claim for materials furnished for the construction of any dwelling house or other building, these sections were not altered. These sections therefore have no application to material-men and laborers unless they are also contractors, and should only be applied to the cases contemplated when they were passed. The short statement of the argument in answer to the claim is, that these sections applied to the law as it existed up to 1849, which did not provide for any lien except in favor of contractors or sub-contractors; that it was then extended so as to include material-men and laborers, and in 1852 was extended so as to include the claims of persons for services and materials in the reparation as well as the erection of buildings ; and these extensions of the law, where the intention is clearly expressed, can not be affected by the language of the old law, which is inapplicable to it now in respect to the persons to whom it has been extended. We must of course be governed wholly by the present statute, and consequently this claim of the defendants can not be sanctioned.

Another claim made by the defendants is, that the plaintiffs’ account is not for lumber furnished for the construction or repair of the paper mills, but that, as dealers in lumber., they furnished to the owners of the mills such an amount as from time to time they required, and that, thus furnished, it was a mere general sale of the lumber without any expectation at the time by either party that there was to be any lien on the buildings into which it might be put. Perhaps there is some foundation for this claim. We certainly should feel bound to examine it with care if the case depended upon it. Obviously, as we think, it never could have been intended that the mere general sale of building materials should create a lien upon the buildings upon which they afterwards happened to be used. But whether the contract upon which this lumber was furnished varies from such a sale, we have not thought it necessary to determine, because there are other grounds which we think fatal to the plaintiffs’ case.

It appears from the report that a portion of the lumber furnished by the plaintiffs never went into either of the defendants’ mills. It is insisted for the plaintiffs that it is sufficient to entitle them to a lien if it was furnished for the mills; that as they had no control over it after it was delivered for that purpose, they ought not to be prejudiced by any misuse of it. We think this claim of the plaintiffs can not be sustained. The theory of the lien is, that the party furnishing materials for the erection or repair of buildings on credit retains his claim to them after they have gone into the building, and to enable him to enforce it his lien is spread over all the property with which the materials have become inseparably connected. Hence he is given a lien- upon the whole building and the land on which it stands. But to give a lien for all the materials sold for the purpose of going into the building, irrespective of the actual use of it for that purpose, might have the effect of creating a lien to the full value of the building, and the land on which it stands, in favor of parties whose property did not in fact any of it go into the building, and thus the persons who had in fact erected or repaired the building, or who had done work upon it, would be deprived of any advantage from the liens given them by the statute. Such surely ought not to be, and as we believe was never intended to be, the result in any case. We think, therefore, that to entitle the furnisher of the materials to a lien, his property must not only be furnished for the erection or the repair of a building, but must actually go into the building and be used for that purpose. This however would not be decisive of the whole case, as the committee finds that, though the exact amount can not now be ascertained, yet the plaintiffs’ property did go into these mills to an amount exceeding $1,460; and we do not see why, if they were on other grounds entitled to a lien for the amount which actually did go into the buildings, they would not be entitled to a decree for this amount, although it may be that other property which they furnished for the same pui’pose’was misapplied.

But a more material question is, whether the certificate filed in this caséis valid for any purpose. The statute requires that the claimant shall describe the premises and the amount claimed as a lien thereon in his certificate, which must be in writing, subscribed and sworn to, the amount being stated as the amount justly due so near as the same can be ascertained. Does this certificate answer these requisites ? The defendants had three paper mills with their appurtenances, two of them on one piece of land, and one on an entirely separate piece, and the contract under which the lien is claimed was that the plaintiffs should furnish such an amount of lumber and other materials as should be wanted for the erection of additions to, and for the completion and l’epair of the three mills, which was to be delivered from time to time to the workmen employed on the mills as they should want them; and the petitioners were requested to keep an account of the respective materials so furnished to each of the mills, and the account was in fact thus kept with each mill separately.

The case therefore does not differ materially from a contract to furnish all the lumber or other material which a builder may require who contemplates building several houses on different lots, (and whether in the same town or not would seem to make no difference,) for which separate accounts with each house are to be kept. Now the lien under such a contract, if it indeed amounts to a lien, or is any thing more than a contract for the sale of merchandise the amount or quantity of which is to be determined by the amount wanted for certain purposes, must, as we think, be a separate and distinct lien on each separate building with its appurtenances; and there was therefore in this case, not one lien on three buildings, but three liens, each for the amount of the material that was delivered*for the erection or repair of the particular mill upon which in point of fact it was put. But in the certificate the three mills are all included together, and a lien claimed on them all for the gross amount of the materials furnished for each and all of them together, thus attempting to make the whole three mills together liable for the materials furnished for each one separately. We can not think that this was intended to be allowed by the statute, which, as it gives peculiar privileges to certain creditors, contrary to the general policy of our law, which favors an equal distribution of the effects of insolvents, should, as we think, be construed with reasonable strictness. If such a course as was here attempted could be justified, then it would seem to follow that general contracts with builders to furnish materials for such houses as they might build within any limited time, or perhaps indefinitely, would bind all the buildings together for the materials furnished for all, and the inconvenience and injury to persons who had separate claims for work or materials for each of the buildings separately would be intolerable. The order in which liens take precedence, which by the statute is to depend upon the commencement of the services or of the furnishing of the materials, would, by this course, be so far disturbed, that the law intended for the protection principally of mechanics, would frequently be perverted to their great injury, by making their claims subject to the prior claims of merchants, whose liens may have had their commencement in the furnishing of materials for buildings completed before their work commenced, and of which they had no knowledge. We think therefore that this certificate neither described the premises on which the lien was claimed nor the amount of the claim itself, and therefore was wholly ineffectual to secure the continuance of it.

There were other points made in the case which we have not examined, because we are satisfied on the point just stated that the plaintiffs can take nothing by their bill. Much reliance however was placed by the counsel for the defendants upon certain receipts given by the plaintiffs, which were supposed to have extinguished, this lien if it ever existed ; and the case of Rose v. Persse & Brooks Paper Works, 29 Conn., 256, was relied upon in support of their views on this point. It is true that the receipts in this case are very similar to the receipts mentioned in the case cited, which the court was inclined to think discharged the accounts for which they were given. No distinction can be made, we think, between a receipt in full, and a receipt which expresses upon its face that what was received was in payment of the account, since a receiptpn full, unexplained, means full payment. It is worthy of remark however, that in the case referred to no distinction was suggested by counsel or noticed by the court, in respect to its effect upon the security or lien, of payment of the account by the substitution of the notes of the debtor accepted or received in payment therefor, and a payment in cash, which, of course, would so extinguish the debt, both in law and in equity, that the security, whether by way of lien or otherwise, would fall with it. Considering therefore that what was said in that case, undoubtedly correct in respect to an action at law upon the original account, was not necessary at all to the decision of the case, one decisive point in which was as in this case the invalidity of the certificate, we think the question of the effect of a payment by the substitution of another security for the debt, upon a lien such as is supposed to have existed in this case, ought still to be left as an open question, notwithstanding the remarks made in the case alluded to.

The superior court is advised to dismiss the plaintiffs’ bill.

In this opinion the other judges concurred.