38 Minn. 272 | Minn. | 1888
1. The mechanic’s lien law of March 20, 1858, (Laws 1858, c. 53,) applied to “every person who shall have a claim for materials furnished or services rendered in the construction, erection, or repair of any dwelling-house,” etc.. The act of August 12, 1858, (Laws 1858, c. 54,) provided that any person who shall have performed, or may hereafter perform, labor, etc., by virtue of a contract with the owner, etc., shall have a lien as thereby provided. By section 17: “In all cases where liens have been filed under preexisting laws, the same may be prosecuted to final judgment under such law; and in all cases where the right to liens has accrued as provided in this act, thp same may be prosecuted in accordance with the provisions of this act.” By section 19 all acts and parts of acts inconsistent therewith were repealed. This act, therefore, was made applicable both to existing and future claims, but limited the lien to cases where the work was performed or materials furnished by virtue of a contract with the owner, except that all liens, of whatever class, which had been filed, were saved and were to be prosecuted under the pre-existing statute. It is clear that the court in Toledo Novelty Works v. Bernheimer, 8 Minn. 92, (118,) were right in holding that, except as to liens expressly saved, the act of March 20th was repealed by the act of August 12, 1858. The purpose of the legislature was made very clear to provide a lien for a certain class
This statement is made because that case is cited as an authority here for the proposition that Gen. St. 1878, c. 90, was repealed by Laws 1887, e. 170, and that the plaintiff is not, therefore, entitled to a lien in this case, and in order to show the distinction between the two cases. The act of 1887 provides (section l).“that on and after the passage of this act, all labor performed * * * shall be a first lien,” and (section 2) “all material furnished * * * shall be a second lien.” Sec. 4. Liens must be filed within 90 days after labor performed or materials furnished. And section 12 re•peals inconsistent legislation. Of the two classes of claims, existing and future, this act purports to provide only for the latter. No mention or provision is made for the former. The existing statute on the subject is not expressly repealed. It is clearly inconsistent with the provisions made for future liens by the act of 1887. It is not so clear that, as to claims existing at the time of the passage of the last act,.the former is necessarily repealed. The new act is expressly made prospective. Fall effect may be given to it, and the old statute remain operative. The legislation is remedial in its character, and since no attempt is made in the new act to make provision for past cases, it will not bfe presumed that it was the intention of the legislature to supersede, the old statute as to them. So far at least the statutes are not inconsistent. Conner v. Lewis, 16 Me. 268, 273. The repeal of inconsistent legislation extends no further than the subject-matter of the act, which relates only to future claims. The distinction between Toledo Novelty Works v. Bernheimer and the case at bar is the same as that recognized by the Maine supreme court between Bangor v. Goding, 35 Me. 73, (56 Am. Dec. 688;) and Conner v. Lewis, supra. We are of the opinion that the plaintiff may prosecute his lien under the General Statutes if otherwise entitled to it.
2. The findings of fact as to the delivery of the machine in ques
The evidence shows that the Pray Company were in need of such a machine for use in the business of their shop. The officers of the plaintiff corporation were informed of the nature of the shop of the Pray Company, and the machinery in it, which had been described to them; and it is clear, from the circumstances under which the machine was ordered and the negotiations between the parties, that it was built for the works of the latter company, and consigned and shipped directly to them at Minneapolis, as intended by the parties. It was accordingly set up in the machine-shop in a place prepared for it, and properly adjusted so as to run and be operated in connection with the other machinery in the shop. It was an enormous planer, of many, tons’ weight, and needs no supports other than the foundation prepared for it. It is found that in order to- set up the machine it was necessary to cut pits in the floor for the gearing. It is not bolted down, but is held in its place by its own weight,— 76,000 pounds. The building in which it was placed was specially constructed for a machine-shop, 200 feet long and 50 feet wide, and had a large amount of machinery in it specially for that business. From the main shafting in the building a belt was run to the counter-shafting, which belongs to and is a part of this machine. The counter-shafting was bolted firmly to eross-ties, which were supplied by the Pray Company, and the cross-ties fastened to the girders of the' roof by bolts. It was intended for permanent use in the shop in the business of the company, and was accessory to it and a necessary supplement to the other machinery. The court also finds that the business of the company was such that it could not be properly carried on without this machine, and “that the machine was of such a nat
The court also finds “that the machine was delivered to the Pray Company at Worcester, in the state of Massachusetts, conditionally, on the 14th day of June, 1886, and that the plaintiff made absolute delivery thereof to the company in Minneapolis on the 23d day of July, 1886, the said conditional delivery having been contingent upon the giving by the Pray Manufacturing Company of its notes therefor.” We think this conclusion, which is not, however, altogether a question of fact, is substantially supported by the record. The business between the parties was chiefly conducted through the mail and by •telegraph. The order of the Pray Company asked “for the best tool you can make, fully warranted, to do perfect work, and a large amount of it; so adjusted and fitted that it can be operated without heating any of its parts;” and requested the right to give six months’ note, “with right to renew three times, on paying part of it as we renew from time to time.” The answer closing the contract fixed the price at $6,077, “free on board cars here; six months’ note, interest added, with right to three renewals if desired.” The Pray Company were anxious for an early completion of the machine to use in their business, and accordingly, as soon as it was completed, it was shipped
The court was also clearly right in-holding that the original claim was not extinguished by the receipt of the notes. Ford v. Mitchell, 15 Wis. 304, and cases cited; Eastman v. Porter, 14 Wis. 39, 47, 48; Paine v. Voorhees, 26 Wis. 522. The existence of the notes did not-prevent the plaintiff from filing his lien. They are overdue, and have never been renewed; and if they had been, the time of payment-would not have been extended beyond the statutory limit for enforcing the plaintiff’s lien.
Order affirmed.