Young v. Chambers

The opinion of the court was delivered by Gibson, C. J. The claim first filed, embracing as it did the block of houses on Carlton street, as well as the block on Callow-hill street, was not sustained by any statute or precedent construction ; and the claimant might file a second time, as if it had not existed. The principle ruled in Pennock v. Hoover, that a joint lien might be filed against adjoining houses put up together, because it might not be in the power of the claimant to discriminate, was the basis of the thirteenth section of the act of 1836, which sanctioned it, and provided for carrying it out by an apportionment of the general charge. The word “ building” used in every act upon the subject, was strictly applicable to a block, which, though composed of separate houses, was put up as a whole; but it could not be predicated of separate blocks in different streets, which could, in no aspect, be viewed as entire. As a charge for labor or materials furnished to the builder of a particular block, could not be apportioned with certainty and convenience in the first instance, necessity required it to be joint; but it is easy to discriminate between separate blocks, in regard to which no such necessity can exist. A joint claim against them would require an apportionment, in the first place, between the blocks themselves as integers, and, in the second, an apportionment respectively among the houses composing them—a proceeding not warranted by the act of 1836. The claim first filed was consequently a nullity, and properly disposed of. [268] But the principle operates against the party in his other cause. As the joint claim against the two blocks was void, they c'ould not be jointly charged in the books; and the entries for materials, furnished without discrimination to both, were properly rejected. It is as easy to distinguish between separate blocks, as it is to distinguish between separate houses in different streets, which must be severally charged. As was ruled in McMullin v. Gilbert, 2 Wh. 277, a claimant’s book of original entries is admissible to prove that the materials were furnished at and for the particular building which is the subject of the lien; but, as was ruled in Church v. Davis, 9 Waits 804, though the entries do not specify the building, that may be done by parol evidence; and had the entries been accompanied in this instance by an offer of such proof, it would have turned the scale: as they were not, they were properly excluded. Judgment in each case affirmed.