45 Minn. 13 | Minn. | 1890
Action by subcontractors to establish a lien for materials furnished for and used in the construction of one of defendant’s lines of street railway. The appeal is from an order refusing defendant a new trial. By finding, .as did the court below upon the trial of this case, that the allegations of the complaint were true, save as to some small matters not important here, it found, among other facts, that plaintiffs furnished and delivered the materials within the state of Minnesota. The assignment of error principally argued by appellant’s counsel is that not only was this finding unsupported by the testimony, but that the plaintiffs’ witnesses, who alone testified upon the point, stated unequivocally that all of the materials were delivered by these plaintiffs to the chief contractor, a corporation, at its place of business in Pennsylvania, and that this corporation, with whom the defendant had alone contracted, thereafter shipped and delivered the same to defendant within this state. As appellant states, there is no room for controversy over this testimony. These plaintiffs entered into an agreement outside of this state to make and deliver the materials to the principal contractor, and completed their contract. But the articles were to be so made and delivered for a specified object and purpose. They were to be made for use upon defendant’s line of road, and according to plans specially furnished therefor.
The statute, now repealed, under which the lien is asserted, (Gen. St. 1878, o. 90, § 1,) provides that “whoever furnishes any labor, skill, or material for constructing, altering, or repairing any line of railway, * * * by virtue of any- contract with the owner, * * * or by virtue of any subcontract with any original contractor with such owner, * * * shall have a lien to secure the payment for such labor, skill, and material.” Of course, under our statute, the case now before us must be considered precisely as if plaintiffs’ agreement had been made with the defendant directly, and .no original contractor had stood between the parties; precisely as if, under a like contract made in the same place, plaintiffs had furnished and delivered their materials to defendant without the state, and that subsequently, and as intended, they had been shipped into
The objections to the depositions of some of the witnesses were properly overruled. The notice, given as provided in Gen. St. 1878, c. 73, § 36, was that the testimony of Thompson, Cassin “and others,” residing in Philadelphia, would be taken at a certain time and place, and under this notice the testimony of Thompson, Cassin, Shapel, and Wallace was taken, the appellant appearing, and, without objection, cross-examining each witness. Upon the return of the depositions to the district court, notice was given, in which the name of each of these witnesses appeared, that their depositions had been returned and filed. No motion to suppress either was made, and the objection upon the trial that Shapel and Wallace were not expressly named-in the notice came too late.
No special mention need be made of the remaining assignments of error.
Order affirmed.