Creasy & Wells v. Emanuel Reformed Church

Opinion by Beaver, J., The record in this case discloses seven assignments of error.The first and seventh relate to the answers of the court to points, submitted by the defendant; the second to the answer of the court to the first point of the plaintiff, the third to the-general- charge of the court, and the fourth, fifth and sixth to the overruling of defendant’s objections to the admission of testimony offered by the plaintiffs. The entire difficulty in the ease, as it seems to us, arises from the different standpoints from which a credit of $2,000, entered in the books of the plaintiff, is viewed. If it were an actual cash credit, all the materials for which the mechanic’s lien in this case was filed against the Emanuel Reformed Church, appellant, would have been -paid. If, as is claimed, and apparently shown by the appellees, it was merely a memorandum to-guide them in extending credit to the contractor for- the church in an entirely independent transaction and was never intended to be an actual cash credit to his account, then the materials would not be paid for, and. the amount of the lien-as ascertained by the jury would be a proper charge against the appellant. Much of the testimony in the -court below bears upon this question. The item, as it appears upon the -books of the plaintiff, which were produced in evidence, is under date of August 20, 1891. It is alleged that this memorandum was made in pursuance of an agreement entered into by Jacob Shoemaker, the contractor, and Creasy & Wells, the plaintiffs below, dated August 9, 1891. Under the terms of that agreement, Creasy & Wells purchased from Jacob Shoemaker the timber standing upon a tract of. land “ occupied by T. W. Shoemaker, situated' in Madison township, Columbia county, Pa.,- containing about [377] two hundred and eighteen acres of wood or timber land, more or less.” “ Price of above timber to be $2,000, payable as follows : One Thousand Dollars when timber is hereafter delivered or hauled to Bloomsburg, Pa. and balance of One Thousand Dollars, when timber is all manufactured.” As we understand the agreement, the'timber was to be paid for as it was removed, and to be manufactured within three years from the date of agreement. It will be noted that the memorandum in the books-of the plaintiffs was made ten days after the signing of this agreement and before any of the price to be paid for the timber could have become due, under the .terms thereof. Under these circumstances, it would have been plain error for the court below to have taken away the question of the character of that entry from the consideration of the jury. It follows, therefore, that the defendant’s ninth point which was that “under all the evidence the verdict should be for defendants ” was properly refused. It was contended by the plaintiffs in the court below that the amount which, under the terms of their agreement, supra, was to be paid to Shoemaker, the contractor, never did, as a matter of fact, become due, and that the amount of timber delivered from the tract did not amount to the full consideration of $2,000. The agreement constituted the contract of the parties and not the memorandum in the plaintiffs’ books. . The answer to the plaintiffs’ first point, covered by the second assignment of error, and the charge of the court as objected to in the third assignment of error are entirely justified upon the authority of Foster v. McGraw, 64 Pa. 464, and McKelvey v. Jarvis et al., 87 Pa. 414. In the absence of an application or-appropriation by the parties, the law will appropriate payment to the claim which is the least secure. The question as to whether or not the materials charged to Shoemaker lor the church were furnished upon the faith of the building or upon Shoemaker’s individual credit was fairly left to the jury. The testimony to which objection was made related to the condition of the accounts between the plaintiff and the con-tractor defendant at the time at which the mechanic’s lien was filed. We see no error in the admission of any of the testimony to which objection was made, as contained in the 4th, 5th, and 6th assignments of error. It was surely compe [378] tent for the plaintiffs to show that at the time the mechanic’s lien was filed Shoemaker was in their debt. This could be shown by establishing items of indebtedness outside the book account and which were not the subject of book entry, such as the indorsement of notes which had been paid by them, etc. As to the seventh assignment of error, we think the answer of the court was entirely correct, affirming as it did the proposition as made by the defendant. The appellants seem to assume that the testimony relating to the indebtedness of Shoemaker outside the account was a set-off to their claim, but, as a matter of fact, this is not the case. The appellants had no set-off to the claim of the plaintiffs, unless they, the plaintiffs were indebted to Shoemaker at the time of the filing of the lien. The court properly limited the evidence which could be considered by the jury in the answer to the appellants’ eighth point, and, as so limited, there is no conflict with the case of Gable & Hughes v. Parry & Randolph, 13 Pa. 181. If the appellant had been in any way influenced in the payment of the balance due the contractor by the condition of the books of the appellees at the time such payment was made, and had been induced to make payment because thereof, the appellees might have been estopped from .showing any items of indebtedness outside their books; but there is no allegation of this kind and the appellees were, therefore, clearly entitled to show the real condition of the dealings between Shoemaker, the contractor, and themselves. We see no error in the record, the case was fully and fairly submitted to the jury under clear and adequate instructions, and the assignments of error are, therefore, all overruled and the judgment affirmed.