95 N.J.L. 79 | N.J. | 1920
The opinion of the court was delivered by
In April, 1917, the Otis Elevator Company made a proposal, in writing, to John Stafford, to furnish and erect two electric passenger elevators in an apartment-house in Atlantic City, then being constructed by Stafford and known as the Vermont Apartments. The proposal was accepted by Stafford on May 4th, 1917. The proposal contained the following paragraph, to which later reference will be made: “We are to' retain title to, and possession of, machinery, implements and apparatus'furnished by us under the terms of this proposal until final payment shall have been made.” The Otis Elevator Company installed the elevators, and upon the failure of Stafford to make payment as the contract provided, filed in the Atlantic county clerk’s office, on August 3d, 1918, a mechanics’ lien against the building and the curtilage on which the same was erected, making as parties defendant the said Stafford, as builder and owner, and those holding mortgages of record against the premises. Stafford became a bankrupt, and the trustees in bankruptcy of his estate were substituted for Stafford as parties defendant by an order of the Atlantic County Circuit Court. The suit instituted on the lien claim was tried and resulted in a verdict for the plaintiff. It was stipulated at the trial that the question of the priorities of the various mortgages should not be .an issue, and that the sole issue for determination was whether the plaintiff had a valid mechanics’ lien. From the judgment rendered the defendants have appealed.
The first ground of. appeal is the refusal of the trial court to charge that the plaintiff’s claim must be reduced by the sum of $1,000, represented by a promissory note not.due at the time of the filing of the lien claim. The testimony showed
The second ground of appeal is the refusal of the trial court to charge certain requests, to the effect that the plaintiff waived its right of lien or its lien to the extent of $1,500 by giving to Stafford a receipt for $1,500 ini cash to be applied on the Vermont Apartments contract when in fact no cash was received by the plaintiff. It appears that the plaintiff’s accountant, without the knowledge of anyone connected with the plaintiff, received a note of $1,500 and gave to Stafford a receipt stating that $1,500 in cash had been received and applied on the contract for the Vermont Apartments. The evidence c-learlv establishes that no cash was in fact paid by Stafford. The note for $1,500 matured July 28th, 1918; was ¡not paid and was produced at the trial. The defendants contend that this transaction is evidence that the plaintiff intended (ai) to look to Stafford personally for the payment of the $1,500; (b) to waive its right of lien pro tanto and (c) to cease to look to the property for payment by way of a mechanics’ lien, and that the jury should have been charged to this effect. The plaintiff received no benefit by the giving of the receipt. If its purpose was to enable Stafford to secure money under the mortgages to which he would not otherwise have been entitled, the mortgagees are not complaining, as
The third question raised by the appeal is the refusal of the trial court to direct a verdict in favor of the defendants, upon the ground that the clause in the contract above set forth by which title to the machinery, Sao., ivas retained b3 the plaintiff until final payment was made, was a waiver of the right of the plaintiff to file a mechanics’ lien. The same point is covered by certain requests to charge made by the defendant which the court declined to charge and to which refusal exceptions were taken by the defendants. The position taken by the defendants is that the mere fact that by the terms of its contract the plaintiff reserved title to its machine^, &c., is conclusive evidence of the waiver by the plaintiff of its statutory right to lien. The right to file a meohlanics’ lien is a valuable right. Not only does the lien claimant thereby fasten his lien upon the very materials, machinery, Sac., which he has put into the building, but he acquires a lien upon the land upon which the building is erected. Clear and unmistakable evidence is necessary to hold that the right to file a lien has been waived.- A waiver of the right to file a lien cannot be inferred from a clause in a contract which is
IVe find, therefore, no error in the rulings of the trial court on this question.
The defendants contend as a further ground of appeal that the trial court erred in the admission in evidence of a journal voucher in the handwriting of a person not called as a witness. If there was error in this admission, which is doubtful, as the evidence was brought out by the defendants’ counsel, it was harmless, and so need not be discussed.
Objection is also made in defendants’ brief to the form of the judgment as entered which gives priority to the lien claim over defendants’ mortgagees. This is not assigned as a ground of appeal. If there is an error in the form of the judgment as entered it can be corrected upon application to the Atlantic County Circuit Court.
The judgment establishing the lien claim of the plaintiff is affirmed, with costs.