New Ebenezer Ass'n v. Gress Lumber Co.

[126] Judgment reversed. 1. Plaintiff introduced . the original claim of lien, which showed that it was recorded on April 14, 1886. Defendants objected to its introduction, on the ground that it was not recorded until April 14, .1886, and some of the items on the bill of lumber sued on and for which the lien was claimed showed that more than three months had elapsed before the recording of the lien. The court overruled the objection and allowed the lien to go in for all the items on the account. 2-4. The court gave the following instructions in charge : “Now if you believe that the plaintiff furnished the material, as alleged in his declaration, to the defendant, and in doing so he complied with all the terms of the statute just read to you, then you should find a verdict sustaining the plaintiff’s lien. ¡ “It is contended by the defendants that the New Ebenezer College, is not responsible for said debt, because they made a contract with O’Brien to build the college and that, by the terms and conditions of the said contract, said O’Brien assumed the liability of paying for all of the material necessary to build the said college, that said defendants had paid said contractor for all the said material. “I charge you that if you believe from the evidence, that the material was furnished to the contractor and the same was used in the construction of the college, with the knowledge and consent of the defendants who were superintending the construction of the building, then I charge you that the building would be subject to the plaintiff’s lien, provided the plaintiff had a lien under the law I have given you in charge. “I charge you, if O’Brien built the college, purchasing the material in controversy from plaintiff under circumstances from which the law would infer a lien, and that one of the defendant’s agents went with O’Brien and instructed the plaintiff to let him have the lumber and they, the defendants, would pay for it, and the lumber was actually furnished, then the college would be liable. “If you believe that one of the building committee appointed by the college, went with the contractor and told the plaintiff to let him have the lumber and they, the defendants, would see the same paid for, then I charge you that the property would still be subject, as such instructions would show notice and dispense with notice necessary to preserve the lien given by the statute, and this would be true notwithstanding the committeeman had no authority to have made such a contract, provided the contract was subsequently ratified by the use of the material in the building. “It does not make any difference to the existence of the lien that the defendant may have paid off the debt sued on, or that they have made a contract with O’Brien by which O’Brien may have, under his building contract, tried to release them from any liability to pay for the material furnished in the construction of the college. “The lien given under the law that I have read you is a right given to a favored set of creditors, and when it exists, by a full compliance with the terms of the statute, could not be defeated by the owners of the property paying the contractor for the material furnished, or by an assumed liability to pay for such material by the contractor, the material man not consenting thereto.” 5. O’Brien was introduced as a witness, and counsel for the other defendants objected to his testifying as to what Wright, the dead defendant, said when he went with O’Brien to Gresston to see about getting the lumber, on the ground that as Wright was dead and the interest of the other defendants was antagonistic to O’Brien who, they averred by their pleas, was the real debtor to plaintiff, it being his individual debt for which no one else was responsible, he was an incompetent witness. The objection was overruled and O’Brien was permitted to testify as to what Wright had said about paying for the material and becoming responsible for the payment. Defendants also objected to Gress, the president of plaintiff, testifying as to- what O’Brien said to him about defendants paying for the lumber, on the ground that it was illegal, and because O’Brien was one of the defendants making no defence; and O’Brien’s statements to witness should not be permitted to bind the other defendants, especially as Wright, who was the only other defendant present at the time besides O’Brien, was dead. The objection was overruled. 6. Defendants moved to rule- out the testimony of one Williams, as to the offer by Mayei’, one of the defendants, to pay fifty cents on the- dollar, on the ground that it was in the nature of a compromise and was inadmissible. The objection was. overruled. The testimony was, that some time in March, 1886, Mayer said in the presence of "Walker and Mullis, two of defendants, that if O’Brien-would pay the account of one Henley, the building committee would pay the account of the Gress Lumber Company; that witness went to see them several times after that, and after O’Brien had paid Henley, and they refused to pay the account in full, but offered to pay fifty cents on the dollar; that these parties were acting as the building committee and had charge of the building of the college ; that Walker and Mayer spoke of increasing their subscription and paying it out of their own pocket; and that Mayer, as one of the building committee, made the offer to pay fifty cents on the dollar, which was refused. Martin & Smith and A. 0. Pate, for plaintiff in error. DeLacy & Bishop and M. T. Hodge, contra.