23 Conn. 544 | Conn. | 1855
Lead Opinion
The bill alleges that the plaintiffs contracted, in writing, with Hawley & Wheeler, to build for them a church edifice, to be completed on, or before, the 15th day of October, 1852, for which they were to pay the builders the sum of $4,750 in instalments, the last of which, being $1,250, was to be paid when the house was completed ; that Hawley & Wheeler went on to perform labor, and furnished materials, though not to the complete fulfilment of the contract ; that the plaintiffs paid all the instalments except the last, and Hawley & Wheeler claimed that they had performed extra work on said building, to the amount of about thirty dollars, which has not been paid, and is not admitted to be due to the full extent of the claim; that several persons, by divers distinct titles, claim the whole amount due from the plaintiffs, viz., Staples & Adams’ claim, $570.67; William S. Edgerton, $68; Elnathan Wheeler, $43.69; Henry B. Lockwood, $35.11; Charles W. Hall, $34; Daniel Burr, $40; Hezekiah Lockwood, $29.94; John S. Hyde, $100.55;
The court found the allegations in the bill true, and ordered that the plaintiffs be allowed to retain in their hands the costs of the bill, and that the defendants, respectively, interplead, and set forth, their claims to the money. This being done, a committee was appointed, at a subsequent term of the court, to find and report the facts in the case, and on the coming in of the report, the case was reserved for the advice of this court.
On the trial before the committee, the plaintiffs admitted that enough was due from them to pay all the claims, except that made by French, the general assignee, and whether any more was due, was left open, and undetermined by the committee, no evidence being taken, or heard, in reference thereto.
The bill has thus far been treated as a mere bill of inter-pleader, but by the English practice, which prevails also in many of the United States, it could not be sustained as such, because it does not admit any definite sum to be due from the plaintiffs, but calls upon the court, for relief, in first settling
It seems to have been irregular, therefore, for the parties to cause the court to find the ‘allegations in the bill true, and authorize the plaintiffs to retain their costs, and then, before it appeared in any way, what sum was due, or, indeed, that anything was due, except; perhaps, by inference, to order the defendants to interplead. “ It is,” says Judge Story, “ the very foundation of a bill of this sort, that the plaintiff is a mere holder of the stake, which is equally contested by the defendants, and that he is wholly indifferent between them.” And it is upon this ground, that the plaintiff is ordinarily authorized to retain the costs of the application. If he has any other object to accomplish than barely to learn who is entitled to the money, which he has in his hands, there seems to be no propriety in his retaining a portion of the fund to pay his costs, until it is determined whether he is entitled to the relief which he seeks; and even then, the court might think him not entitled to his costs, though it might grant the relief asked for; and if the bill may properly be treated as a bill, in the nature of a bill of interpleader, it would seem to have been proper for the court to ascertain the amount of the plaintiffs’ indebtedness, before it ordered the parties to interplead; or, at least, to have appointed the committee to find the amount of it, as well as the facts in respect to the answers of the defendants. But none of the defendants, at the proper stage of the cause, saw fit to demur, or take any exception to the bill as originally framed ; and although it is said that the court may, in any stage of a case, dismiss a bill for similar irregularities, we do not understand it to be claimed that it is bound to do so, and it appears to us better, upon the whole to dispose of the case, upon the facts found in the report of the committee, applicable to all the defendants, except the general assignee of Hawley & Wheeler, leaving him to prosecute his action at law, for such balance of the indebtedness, as may be due, after paying such of the other defendants as.are
Coming then, to the disputed claims of the defendants to the fund in the?plaintiffs’ hands, it appears that, with the exception of the claim made by the general assignee, they are of two classes. First, are all the claims except those of Edgerton and Elnathan Wheeler; and secondly, the claims of these two persons. Besides these, there are the claims of Daniel Burr and Charles W. Hull, in reference to which nothing need be said, as the parties all admit that their claims are just, and entitled to payment, out of the moneys in the plaintiffs’ hands.
In reference to the claims of the first class, it appears that, previously to the contract of the society with Hawley & Wheeler, these claimants all stood in the relation of subscribers, who had each subscribed certain sums in aid of the erection of said church edifice; that Hawley & Wheeler, in the progress of their work on the church, having occasion for labor and materials to be furnished them, applied therefor to each of these persons, and, to induce them to furnish them, they agreed with them, that the society might pay them for such materials and labor as they respectively furnished, to the extent of each one’s account therefor, by- applying the same on their several subscriptions, and thus, to the extent of labor and materials furnished by each, cancelling his subscription, and if there was still a balance due him, it was to be paid him in cash by the society, and the amount thus paid, together with the amount of subscription cancelled, was to be charged by the society to Hawley & Wheeler, as payment on their contract for building the church. This arrangement was made known to the society, before the church was completed, and in every instance assented to;
First, it is said that the building committee, through whom the arrangements were made, had no power to assent to them on the part of the society.
We do not think it necessary to determine the precise powers of a building committee, in the strict sense of the phrase. This committee was composed of the ordinary society’s committee, with others joined with them, and it appears that they all acted together in making the contracts, and in all that has been done in behalf of the society, in respect to said church edifice; and, as the report says, in the exercise of the powers given them by the society, and the society, through their counsel, on the hearing, expressed their assent to all that had been done, and so far as we know or believe, they continued to recognize their acts as properly done, up to the present time. Under these circumstances, we can not doubt their powers, both in respect to the original .contract, and all the other incidental arrangements made with the claimants.
Next, it is claimed that the promise of the society to pay the claimants, was a promise to pay the debt of another, and therefore void within the statute of frauds; and, if otherwise, it was made without consideration, and therefore void on that ground. But this was not a promise to pay the debt of another. It was a promise, by the society, to pay their own debt to Hawley & Wheeler, or a portion of it, to the several claimants, and it was made in consideration of the extinguishment of the claimants’ demands against Hawley & Wheeler. The agreement between Hawley & Wheeler and the claimants, as
The second class of claims, consisting of the claims of Edgerton and Elnathan Wheeler, stand upon different ground. These persons furnished materials, and rendered service in the construction of said church, each to an amount exceeding twenty-five dollars, at the request, and on the credit of Hawley & Wheeler, and within sixty days after they had ceased furnishing said materials, and performing such service, they each lodged with the town-clerk, a certificate, duly executed according to the provisions of the statute, each claiming a lien on the church, and the ground on which it stands, to the extent of their respective debts, and the question is, whether they are entitled to such lien,—or, in other words, whether a sub-contractor, who performs services, or furnishes materials in the construction, or repair of a building, on the credit and at the request of the contractor, without the assent of the proprietor, either in writing or otherwise, can maintain a lien upon the premises under our statutes, as they were when these debts were contracted? A majority of the court are of opinion that such a lien can not be maintained. The liens are claimed under the statute of 1852, which provides, that “every dwelling-house or other building, for the construction, or erection of which, any person shall have a claim for materials furnished or services rendered, exceeding the sum of twenty-five dollars, shall, with the land on which the same may stand, be subject to the payment of what may be due from the proprietor, and the same shall be a lien on such land and building, and shall take precedence,” &c. Stat. ed. of 1854, p. 644. This language is, we are aware, very comprehensive, and literally
We, however, place more reliance upon the fact that, at the time the act of 1852 was passed, there was a statute in existence, in relation to this very subject of sub-contractor’s liens, providing, in express terms, that where they have claims to the amount of fifty dollars, or more, and their subcontracts are in writing, and assented to by the other party, they shall be entitled to a lien on the house or building constructed or repaired. Stat. 642, ed. 1854. It appears to us, that a statute, like this, which seems to have been carefully drawn and provides for a priority, by contract in writing between the sub-contractor and the proprietor, could not have been intentionally repealed in the indirect mode claimed,
The object of the act of 1852 seems to have been to reduce the amount of indebtedness for which a lien may be claimed. Perhaps, also, it was thought that there might be a class of persons, not coming within the strict designation of sub-contractors, who might perform labor, or furnish materials, under circumstances justly entitling them to the benefits of a lien, to whom it was intended to extend the benefits of the statute.
On the whole case, then, we advise the superior court to allow, and cause to be paid, out of the moneys in the plaintiffs’ hands, the debts of all the defendants except Edgerton and Elnathan "Wheeler, whose claims we advise the court to disallow and dismiss; and in respect to the.claim of Joseph B. French, described in the report of the committee, as the assignee of Hawley & Wheeler, that he be at liberty to prosecute the action in his favor, against the plaintiffs, to final judgment, deducting from the amount, which he might otherwise be entitled to recover, the several sums as aforesaid to be paid to the defendants.
In this opinion the other judges concurred, except Waite, C. J., who dissented.
Concurrence Opinion
I concur in the opinion expressed, except so far as the claims of Elnathan Wheeler and William S. Edgerton are concerned. As to them, I am clearly of opinion that, under the statute of 1852, they are entitled to their liens.
That act provides that “every dwelling-house, or other building, for the construction, erection, or repairs of which, any person shall have a claim for materials furnished, or services rendered, exceeding the sum of twenty-five dollars, shall, with the land, on which the same may stand, be subject to the payment of what may be due from the proprietor, and the same shall be a lien on such land and building.”
It is found, by the committee, that these two defendants-furnished materials, and performed labor in building the plaintiffs’ meeting-house; that the claim of each exceeds the sum of twenty-five dollars; and that there is still enough due from the plaintiffs to the contractors, by whom they were employed, to satisfy their claims. Why, then, are they not entitled to satisfaction ? Their case comes within the plain and express provisions of the statute.
It has been said that it must be construed in connection with the preceding statutes, and be limited, in its operation, to the claims of those who have been employed by the proprietors of the building. But this limitation, in my judgment, is neither warranted by the language of the statute, nor was it in the contemplation of the legislature.
The title of the act describes it, as being in “ addition to ” the first statute, passed upon this subject, but in the body of the act, there is not one word showing any connection with any previous statute.
The law, securing to mechanics a lien upon buildings, has been gradually extended, as its beneficial operation became manifest.
The first statute, passed in 1831, was designed merely to secure the contractor against the failure of the owner of the building. It gave Mm a lien, when the amount, due him upon his contract, exceeded the sum of two hundred dollars. The act of 1839, extended the right to a sub-contractor, having a claim to the amount of fifty dollars. The act of 1852 gave a lien to any person, who had furnished materials, or performed labor, to the amount of twenty-five
Finally, the general assembly, at its last session, repealed all these statutes, and passed a new one, almost in the very words of the act of 1852, with some additional provisions for the further benefit of the laboring mechanic. The lien is given, not only for work done upon a building, but upon any of its appurtenances, and subjects the owner to the payment of the claim, whether he is, or is not, indebted upon his contract, for the building or the repairs,—thus giving more adequate security to the laboring man, than was provided in the former statutes.
It is further said, that the construction, here given to the act of 1852, imposes onerous duties upon the owners of buildings, requiring them to see that workmen and material men are all paid. But those duties are less onerous than those imposed by the act of the last legislature. The former merely requires them to see to the application of the payments, which they have agreed to make. The latter statute requires them to pay the liens, whether they are, or are not, indebted to any one for the amount.
It is better, far better, that they should be required to see that the claims of such men are satisfied, than that they should be defrauded by irresponsible builders. If men choose to employ such builders to erect, or repair their buildings, let them take proper security, or so regulate their payments that the workmen, and material men, shall not lose their labor, and their property, by the insolvency of the builder, and their families suffer in consequence.
The law, upon this subject, is a very wholesome and beneficial one, and well calculated to guard the interests of a' class of men, who have formerly been, in many cases, great sufferers, and are peculiarly entitled to legislative protection. It should receive a fair and liberal construction, and if it should be holden that the statute, now in force, is insufficient for that purpose, from the disposition hitherto manifested by
And it seems to me that there is no Christian community, that would not rather take all the measures necessary to protect the interests of the laborers on their church, than worship in one, built by persons, who have been defrauded of their labor and property by bankrupt builders, employed, by that community.
For these reasons, I am of opinion that Wheeler and Edgerton have valid liens upon the plaintiffs’ meeting-house, for the work they have done upon it, and the materials they have furnished, and are entitled to payment from the amount still due from the plaintiffs to the insolvent builders.
Decree accordingly.