Hommel v. Lewis

Mr. Justice Green delivered the opinion of the court, January 7th 1884. There Avas no question on the trial that the materials claimed Avere actually furnished for, and'entered into the construction of, the building. This Avas averred in the claim of lien filed, and in the affidavit of claim, and Avas not denied in the affidavit of defence, and, by rule of court, this constitutes an admission of the material averments of fact. The learned judge of the court below charged the jury that, if the materials Avere furnished on the credit of the contractor, there could be no recovery, and left that question for them to determine, saying, that it rested upon the defendant to make that proof. He also told them that it was not necessary for the plaintiff either to allege in his lien, or to prove affirmatively, that the materials were furnished on the credit of the building ; that the statute conferring the lien madé no such requirement.' In all this there Avas no error. Of course, it must be true as a fact, that the materials were furnished on the credit of the building; but when a plaintiff complies with all the provisions of the Act, he has done all that the law requires, and is entitled to recover, unless it has been shown that for some sufficient reason he is not so entitled. It was contended, on the part of the defendant, that the materials were charged to the contractor on the plaintiff’s books, and that this Avas prima facie evidence, that they were sold on his credit only; and further, that this presumption, unless controverted by other evidence, would become conclusive against the plaintiff, and prevent any recover}’. The defendant’s point, to this effect, was not answered specifically, but it was substantially negatived in the general charge, and, as we think, with entire correctness. If affirmed, it would result in this, that the mere circumstance that the materials were charged to the contractor, would itself create a presump [470] tion, that they were furnished on his credit only, and that, unless that presumption were rebutted by affirmative proof to the contrary, it would become conclusive, and debar a recovery by the plaintiff. This is certainly not the law, and no authority has been cited which so decides. The proposition and the argument in support of it overlook entirely the effect of the facts, that the materials were furnished for the building, were delivered for the purpose of being used in its construction, and actually entered into and formed a part of its erection, and also that the material-man subsequently and within six months, filed of record a claim of lien against the building for the materials so used, and asserted therein that they were furnished on the credit of the building. These facts are not only evidence of an intent to charge the building, but they are so conclusive upon that subject that the statute declares that, the other formal requirements being complied with, they will confer a lien against the building and the ground upon which it stands, which may be enforced against the will of the owner. The statute does not require either that the materials shall be charged against the owner, or that the claim of lien shall assert that they were furnished on the credit of the building, or that affirmative proof shall be made that sucli was the fact. Of course if the articles Avere charged against the contractor alone, it is some evidence, though slight only, that they were furnished on his credit, and of this the defendant had the full benefit under the charge of the court, which left the whole question to the jury. Further than that it would not have been proper for the court to go upon this one feature of the case. Ixo witness testified that the goods were sold to the contractor on his own credit alone. The fact that there Avere continuous dealings between the plaintiff and the contractor in the same line of goods was some evidence, which the defendant was permitted to use in support of his theory. The giving of a note was also allowed to be proved, though it was of no weight whatever, as it was not received as payment, and beyond this we can see nothing whatever in the case tending to establish the defendant’s view. The defendant was afforded by the charge a full opportunity to make the best use he could of the facts relied upon, with the jury, but he did not succeed in convincing them that the materials were furnished on the credit of the contractor alone, and the verdict was therefore against him. Certainly it Avould’ not have been proper for the court to say, as matter of law, that when the plaintiff had absolutely proved every fact which under the statute entitled him to recover, he was nevertheless prevented from recovering because he had not done something which neither the statute nor any decision required him to do, to wit, charge the goods on his books to the owner. In Wolf [471] v. Batchelder, 6 P. F. S. 87, Strong, J., said on p. 88 : “ It is not by statute made necessary that the sale and delivery of materials should be charged in a book of original entries. Any evidence that satisfies a jury they were furnished for or about the construction of the building is sufficient. To the inquiry whether there is a lien or not it cannot therefore be essential in what manner the sale and delivery of the materials were charged at all.” Again : “ It has been decided that the charges may be made against the contractor without any reference to the owner or to the building: Church v. Allison, 10 Barr 413; though in such a case there must undoubtedly be other proof that the materials were furnished for the building.” In the present ease it was alleged in the lien filed, and in the affidavit of claim, that the materials were furnished for the building and were used in the construction thereof, and of this fact there was no denial. Under the rule of court this absence of denial was an admission of the fact that the materials were so furnished and used, and no further evidence on that subject was neeessaiy. From these facts the inference arises that the materials were furnished on the credit of the building, because by the express provisions of the statute a lien is conferred by the mere furnishing of materials “ for or about the erection or construction of the same.” Of course, this inference or presumption may be rebutted by proof that in point of fact they were not furnished on the credit of the building, as was also pointed out by Judge Strong in the opinion above quoted. Thus, on p. 89 he says: “ The jury were instructed to find from this evidence whether the materials went into the building, and whether they were furnished on the credit of the building. They were told it was unimportant in what mode the books were kept; that the material-man had a right to say that, he had furnished the materials on the credit of the building (even though no reference was made to the building in his books), unless he had agreed not to do so, or had been "forbidden to do so by the owner. They were still to determine from the evidence whether the plaintiff had been so forbidden, or had so agreed, or whether with or without any understanding he did furnish the materials charged for, on the credit or security of the building. In this we see nothing of which the defendant can rightfully complain.” This reasoning disposes of the present case. There was no testimony whatever that the plaintiff had been forbidden by the owner to furnish the materials on the credit of the building, or that he had agreed not to do so. The circumstance that the goods were charged to the contractor, although it has some significance, is not at all sufficient to outweigh the statutory presumption that they were furnished on the credit of the building, because they were [472] furnished “ for or about the construction of the same,” and hence the jury were warranted in finding for the plaintiff: on this branch of the case. In Van Billiard’s Admin. v. Nace, 1 Grant 235, it was expressly decided that it was not necessary to prove that the sale was made on the credit of the building. These considerations determine the first six assignments of error. As to the seventh and eighth it is only necessary to say that it was proved by tlie defendant’s own testimony that the note in question was not taken in payment of any part of this debt, and hence it was of no consequence in the case. The ninth and tenth assignments relate to the exclusion of the contractor as a witness. As he was a defendant and the plaintiff was an administrator, the Act of 1869 had no application, and Hommel’s release of costs to Eritz was no better than waste paper to render him competent. Judgment affirmed.