116 F. 793 | 6th Cir. | 1902
after making the foregoing statement of the case, delivered the opinion of the court.
i. The hotel company objects to the claims of Jones & .Laughlins,
Pittsburg, Pa., March 21, 1896.
W. J. McClain, Columbus, Ohio, Bought of Jones & Laughlins, Limited.
1895.
April 17. Merchandise............................................8515 10
April 22. Merchandise............................................ 501 21
Sixty-two other items of “merchandise,” under as many different dates, then follow. The objection is to the indefiniteness of this statement.
“Merchandise,” say the appellants, is a trade term covering every form of movable customarily bought and sold for gain, and from an account so stated it cannot be told what kind of merchandise is claimed to be “materials” used in or about the structure erected for the hotel company. “For all that can be known from this itemized statement,” say counsel, “the Jones & Laughlins Company may have sold and delivered to McClain, the principal contractor, canary birds, or fiddle strings, for which they now claim a lien upon appellants’ property as materials furnished for and on account of the structure erected for it.” This criticism is based upon the contention that this statement cannot be read in connection with the affidavit filed by Jones & Laughlins, of which the statement is a part. The statute requires, as a foundation for the lien, the filing and recording of an affidavit “containing an itemized statement of the amount and value” of the materials furnished and work done, and all credits, etc., and a “copy of the contract, if it is in writing,” etc. Thus the “contract” and the “itemized statement” are made parts of the lien affidavit. Looking to the Jones & Laughlins affidavit, we find that a copy of the contract with W. J. McClain, who is averred to have been the principal contractor engaged in the erection of the appellants’ hotel and opera house, is set out in full, and made part of the affidavit, and that it is averred that “the annexed statement, marked ‘A,’ which is made part of this affidavit, is a true and correct itemized statement of the amount and value of the labor
2. The objection to the “itemized statement” filed by the American Blower Company as part of its affidavit is even more untenable. The contract made a part of the affidavit, as required by the Ohio statute, shows an entire contract for a heating and ventilating plant at the price of $3,989. The-account filed as part of the affidavit is in these words: “Sept. 19. To contract, $3,989.00.” Then follow items
The next objection is that there is no date to show when this lien was attached. The date June 29, 1896, at head of account, is plainly the date when made up. The date September 19th, at top and to the left of item “To contract, $3,989.00,” is, by comparison with the •contract referred to and part of the same affidavit, the date when the “contract” was made. The next date below, November 4th, is •evidently the date of “first item,” or beginning, of the work.
3. The itemized statement of the Akron Hydraulic Press Brick Company is also objected to as vague. When read in connection with the other parts of the affidavit, we see that the items are for brick of various quality and.shape. A statement of account is not insufficient simply because trade terms and bookkeepers’ abbreviations are used. No orje can fail to see that the items of the account are for different kinds of brick, the number and price of each being given. It is not enough, to render an itemized statement insufficient under such a lien statute, that every one shall know just what kind •of brick are meant by such an item a's “745 jack arch,” or “385 plain •arch,” or “9,100 standard 2nds.” If, by reading the itemized statement in connection with the affidavit of which it is a part, it can be seen that the items are for brick claimed to have been furnished ■under a contract, written or oral, the requirement of the statute of an “itemized statement” is substantially complied with. If such trade terms or bookkeepers’ abbreviations are unintelligible to the •court, it is competent to hear evidence from those familiar with the trade as to their meaning. Wetmore v% Marsh, 81 Iowa, 677, 47 N. W. 1021; Henry v. Plitt, 84 Mo. 237. The objection that the contract is not set out in the affidavit is irrelevant, because it is •averred that the contract was not in writing, and the requirement •of the statute is that a copy of the contract shall be set out, “if in writing.” The terms of the oral contract are sufficiently shown in connection with the account to be regarded as a substantial compliance with the statute.
4. It is next objected that the verification to the filed affidavit of the claim of the Grand Rapids School Furniture Company.is not by an agent having knowledge of the facts. This is a pure assumption, based alone upon the fact that the agent verifying is also the counsel of record. The statute does not require that any particular person •or agent shall make the statutory affidavit. Undoubtedly any one who deems himself acquainted with the facts may make the necessary
5. The next objection is that the act of April 13, 1894, under which for the first time an independent lien is given to subcontractors who furnish materials or perform labor at the instance of the principal contractor, was invalid, as in conflict with that provision of the Ohio bill of rights (Article 1, Const. Ohio) w’hich declares that “all men are by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety.” The contention is that a law which enabled a principal contractor, without the consent of the owner, to incumber the owner’s property with an independent lien in favor of a subcontractor furnishing labor or materials for use by the principal contractor on the premises of the owner, without regard to the state of accounts between the owner and such contractor, is a law which so interfered with the owner’s liberty of contract as to be in excess of the legislative power. In support of this view the appellant has cited and relied upon the opinion of the supreme court of Ohio in Young v. Hardware Co., 55 Ohio St. 423, 45 N. E. 313, in which it was held that the extension of the Ohio mechanic’s lien law by the act of April 13, 1894, so as to give an independent lien to sub- , contractors, was null and void, as a violation of that liberty of contract declared to be an inalienable right by the Ohio bill of rights. The decision of the Ohio supreme court was made after the liens here asserted had been perfected, and in a cause to which none of the present lienors were parties. The bill of Benjamin F. Jones et ah, constituting the jomt-stock partnership of Jones & Eaughlins, Limited, was demurred to by the hotel company for want of equity, and the demurrer was sustained, and the bill dismissed, in an opinion delivered by the late District Judge Sage, and reported in 79 Fed. 477. From the decree dismissing the bill Jones and others appealed to this court. Upon that appeal this court, upon full consideration, held:
First. That a decision of the Ohio supreme court is not obligatory upon courts of the United States when thereby the validity of contracts between a citizen of the United States and a citizen of another state is affected, which were executed before there was any judicial construction of the statute or constitution which seemed to authorize the contract in question. The decision thus made was in accord- . anee with the opinion of this court in Louisville Trust Co. v. City of Cincinnati, 22 C. C. A. 334, 76 Fed. 296, where, after stating the general rule to be that a court of the United States would adopt and follow the construction of a state constitution or statute announced by the highest court of the state, we said:
“A 'well-grounded exception exists where contracts and obligations have been entered upon before there has been any judicial construction of the statutes upon which the contract or obligation depends by the highest court of the state whose statute is involved. In such a case, if a court of the United States obtains jurisdiction of a question touching the validity, effect, or obligation of such a contract, it will, while leaning to an agreement with*799 the state court, exercise an independent judgment as to the validity and meaning of such contract, although the meaning and validity of such statutes may be an element in the case, and will not be bound to follow opinions of the state court construing such statute, if such decisions were rendered after the rights involved in the controversy originated.”
Burgess v. Seligman, 107 U. S. 20-33, 2 Sup. Ct. 10, 27 L. Ed. 359; Pleasant Tp. v. Ætna Life Ins. Co., 138 U. S. 67-72, 11 Sup. Ct. 215, 34 L. Ed. 864.
Second. Upon the former appeal we also held, after careful consideration, that “neither upon reason nor authority are we able to come to an agreement with the Ohio court,” and that, “in the exercise of our independent constitutional jurisdiction, we must declare our conscientious judgment to be that the Ohio statute was not void, and that complainants are entitled to relief thereunder.” The decree of the circuit court was accordingly reversed, and the cause remanded for further proceedings. Jones v. Hotel Co., 30 C. C. A. 108-127, 86 Fed. 370. That case was taken by writ of certiorari to the supreme court, where it was held that a limited partnership doing business under a firm name, and organized under the Pennsylvania act approved June 2, 1874, is not a corporation within the rule that a suit by or against a corporation in a court of the United States is conclusively presumed, for the purposes of the litigation, to be one against or by citizens of the state creating the corporation. The citizenship of the stockholders in the firm of Jones & Laughlins, Limited, not otherwise appearing than by an averment that the plaintiffs were “members of the limited partnership association * * * organized under the Pennsylvania act” above mentioned, it was held that it did not sufficiently appear that the plaintiffs were citizens of Pennsylvania. As the jurisdiction depended upon diversity of citizenship, the judgments of the circuit court and of this court were reversed, and the cause remanded for further proceedings, with directions that the plaintiffs be allowed to amend the pleadings upon the subject of the citizenship of the parties, and that the court proceed to a final hearing on the merits if the amendment should show a case within the jurisdiction of the court. Hotel Co. v. Jones, 177 U. S. 449, 20 Sup. Ct. 690, 44 L. Ed. 482. The question of the validity of the Ohio statute was not all considered by the supreme court. The pleadings were accordingly amended so as to show a case within the jurisdiction of the court. Upon final hearings on pleadings and proof there was a decree for the complainants in that case, and a like decree in the other cases, for convenience heard on appeal with that case.
For reasons presented in the former opinion of this court, cited above, we hold that the Ohio lien law of April 13, 1894, conferred upon the appellees a valid and enforceable lien, and the several decrees appealed from are accordingly affirmed, with costs.