Wilson v. Forder

The opinion of the court was delivered by Lowrie, C. J. — On the closing of the testimony of the plaintiff below, the defendant asked for a nonsuit, and we think he might well have had it on the evidence. We do not notice the reasons he assigns here; because he does not appear to have assigned any below. The court reserved the question, whether there was any sufficient evidence that the last work was done in pursuance of a special contract for a stipulated price, for the plastering of all the six houses, as alleged in the claim, and afterwards decided that there was. But we do not think so. If the houses were finished before the 11th August 1854, this claim was filed too late. There was some patching done on that day, and the question was: was it done in pursuance of a contract for the whole plastering ? We see no evidence of such a contract. And even if there had been one, we do not see that it ought to have benefited the plaintiff; for all the houses were completed, in all substantial particulars, long before that; and on the 9th August the parties had settled their accounts, and the plaintiff had received notes for the balance of his claim: and then, at least, if not before, he might have filed his claim against the buildings, notwithstanding the patching, and his right to do so was gone in six months after that. The contract alleged, is one contract for a stipulated sum, for the plastering of all the six houses, and we see no word of evidence sustaining the allegation; but, on the contrary, that item of the plaintiff’s evidence that shows that appraisers were called in to value his work, and that they valued each house at $210, is very convincing evidence against it. For anything that we can discover in the evidence, there might have been a separate contract for each house. But apart from this, we think that the cause was tried on a wrong theory. It is assumed that, where there is one' contract for the work to be done in the erection of six or a score of houses, the lien of the mechanic on all of them continues, without being entered, until six months after the last work is done on the one which is last in being finished; although others of them may have been finished months or years earlier, and sold to fair purchasers [132] who buy them as finished houses, and who know nothing of the contract connection between the houses, nor of the fact that some of them are unfinished. Now surely this is not well assumed. It is a plain moral duty of legislation and jurisprudence, even in furnishing and administering a deserved protection to one class of citizens, to see that the general rules of this special part of the law shall not be a snare and an injury to the community. The mechanics’ lien law does not require any departure from this principle. Though a man may file a joint claim against several houses built together for the same owner, yet the law does not require it, for it makes every building subject to a claim for the expense of its erection. Though the contract be entire, the law apportions the claim into as many liens as there are houses, and a claim may be filed against each house as it is finished, and therefore a purchaser has a right to presume that a house is free from all claims not entered within six months after its completion. This rule is plainly necessary, at least for the protection of purchasers, whether the original owner would be entitled to invoke it or not. They read nothing more plainly in the law than the rule that a house is free from mechanics’ claims not recorded within six months after its completion, and they have a right to protection in their reliance on this rule. It contributes to certainty of titles, to the avoidance of litigation, and therefore to the value of such property, and it is very easily understood and followed. And this can very rarely disappoint the just expectations of the builders, if they file their claims with any proper regard to the rights of purchasers; for almost always it is only a balance that is due on their contracts, and they may apply all payments made to them to the discharge of such houses as may have been sold, except in cases where such an application would unjustly interfere with other liens. Then, in almost all cases, the remaining houses would be an abundant security for the balance due to them, and the rights of purchasers would be fairly treated. The decision of the reserved point in favour of the plaintiff involves the assertion of the principle that, if there was a special contract for plastering all the six houses for a gross sum, the patching done in any one of them, long after the whole work was substantially completed, may be regarded as the completion of each and all of the houses; and a claim filed six months thereafter is a good lien even as against a previous purchaser, to whose house no patching was done. This point ought to have been decided in favour of the defendant. Judgment reversed, and judgment for the defendant, notwithstanding the verdict.