Consociated Presbyterian Society v. Staples

Hinman, J. The bill alleges that the plaintiffs contracted, in writing, with Hawley & Wheeler, to build for them a church edifice, to be completed on, or before, the 15th day of October, 1852, for which they were to pay the builders the sum of $4,750 in instalments, the last of which, being $1,250, was to be paid when the house was completed ; that Hawley & Wheeler went on to perform labor, and furnished materials, though not to the complete fulfilment of the contract ; that the plaintiffs paid all the instalments except the last, and Hawley & Wheeler claimed that they had performed extra work on said building, to the amount of about thirty dollars, which has not been paid, and is not admitted to be due to the full extent of the claim; that several persons, by divers distinct titles, claim the whole amount due from the plaintiffs, viz., Staples & Adams’ claim, $570.67; William S. Edgerton, $68; Elnathan Wheeler, $43.69; Henry B. Lockwood, $35.11; Charles W. Hall, $34; Daniel Burr, $40; Hezekiah Lockwood, $29.94; John S. Hyde, $100.55; — 553 — John Goodsell, $10.87; T. B. and H. Wakeman, $136.77; and that Joseph B. French, as assignee of said Hawley & Wheeler, claim the whole of said instalment, together with the amount due for said extra work, and to recover the same, he has an action at law, now pending, against the plaintiffs. It is there stated that the plaintiffs are willing to pay whatever sum they are justly owing on said contract, to such persons as the court shall direct, but that the several persons, claiming the above balances, threaten to bring actions against them for the recovery thereof. The plaintiffs thereupon pray, that the balance due from them be settled and adjusted by the court, and that the defendants set forth, and discover, what right they, each of them, have to the balance claimed by each respectively, and that they interplead and settle their demands among themselves; the plaintiffs offering to pay the balance so found due from them on said contract, and to bring the same into court for that purpose. The court found the allegations in the bill true, and ordered that the plaintiffs be allowed to retain in their hands the costs of the bill, and that the defendants, respectively, interplead, and set forth, their claims to the money. This being done, a committee was appointed, at a subsequent term of the court, to find and report the facts in the case, and on the coming in of the report, the case was reserved for the advice of this court. On the trial before the committee, the plaintiffs admitted that enough was due from them to pay all the claims, except that made by French, the general assignee, and whether any more was due, was left open, and undetermined by the committee, no evidence being taken, or heard, in reference thereto. The bill has thus far been treated as a mere bill of inter-pleader, but by the English practice, which prevails also in many of the United States, it could not be sustained as such, because it does not admit any definite sum to be due from the plaintiffs, but calls upon the court, for relief, in first settling — 554 — for them, the amount of their indebtedness for the building of the church. Sto. Eq. Pl., p. 16, § 18, and p. 345, § 297. It seems to have been irregular, therefore, for the parties to cause the court to find the ‘allegations in the bill true, and authorize the plaintiffs to retain their costs, and then, before it appeared in any way, what sum was due, or, indeed, that anything was due, except; perhaps, by inference, to order the defendants to interplead. “ It is,” says Judge Story, “ the very foundation of a bill of this sort, that the plaintiff is a mere holder of the stake, which is equally contested by the defendants, and that he is wholly indifferent between them.” And it is upon this ground, that the plaintiff is ordinarily authorized to retain the costs of the application. If he has any other object to accomplish than barely to learn who is entitled to the money, which he has in his hands, there seems to be no propriety in his retaining a portion of the fund to pay his costs, until it is determined whether he is entitled to the relief which he seeks; and even then, the court might think him not entitled to his costs, though it might grant the relief asked for; and if the bill may properly be treated as a bill, in the nature of a bill of interpleader, it would seem to have been proper for the court to ascertain the amount of the plaintiffs’ indebtedness, before it ordered the parties to interplead; or, at least, to have appointed the committee to find the amount of it, as well as the facts in respect to the answers of the defendants. But none of the defendants, at the proper stage of the cause, saw fit to demur, or take any exception to the bill as originally framed ; and although it is said that the court may, in any stage of a case, dismiss a bill for similar irregularities, we do not understand it to be claimed that it is bound to do so, and it appears to us better, upon the whole to dispose of the case, upon the facts found in the report of the committee, applicable to all the defendants, except the general assignee of Hawley & Wheeler, leaving him to prosecute his action at law, for such balance of the indebtedness, as may be due, after paying such of the other defendants as.are — 555 — entitled to a portion of the fund. We do not see that any injustice can be done by this course. The plaintiffs admitted there was enough due from them to pay, to all these defendants, the several amounts of their respective claims; and as we are of opinion that some of them are not entitled to their claims, it follows, that something must be left for the general assignee, which he will recover in his action at law, and this will leave him in the same condition, as to costs, that he would be in, if the bill was dismissed. We do this the more readily, under the peculiar circumstances of the case, in which the parties are numerous, the litigation expensive in reference to the small sums claimed by several of them, and all parties, except the general assignee, are anxious to have their rights to the fund settled; and the assignee, at this late stage of the proceedings, ought not to be heard to complain, when he had it in his power to stop the proceedings at the commencement, if the suggestions, which he now makes, are well founded. Besides, our chancery practice is, in many respects, variant from that which prevails in England, and in many of the states of this Union, and how far it is proper for us to go in adopting the English practice, it does not seem necessary for us now to determine. When no exception is taken to a bill of interpleader, before the hearing is closed, on account of its asking for relief, other than that upon which such bills are founded, it seems inequitable that the parties should be put to the expense of further unnecessary litigation. And in the case of Nash v. Smith, 6 Conn. R., 421, this court departed entirely from the well settled English practice of requiring an affidavit of the absence of fraud and collusion, to accompany the bringing of such bills, and permitted the plaintiff to proceed, although there was no offer to bring the money into court, and it had, in fact, been paid over to one of the claimants. Indeed, it has always been the course of our courts to simplify our practice, in regard to matters of form, as far as it was deemed safe to do so without endangering the administration of sub — 556 — stantial justice; and whether it may not be safe, and conduce to the ends of justice, to extend somewhat, the remedy, by bills of interpleader, and do away with the distinction between them and bills, which are called bills in the nature of bills of interpleader, it may be proper for the court hereafter to determine. Coming then, to the disputed claims of the defendants to the fund in the?plaintiffs’ hands, it appears that, with the exception of the claim made by the general assignee, they are of two classes. First, are all the claims except those of Edgerton and Elnathan Wheeler; and secondly, the claims of these two persons. Besides these, there are the claims of Daniel Burr and Charles W. Hull, in reference to which nothing need be said, as the parties all admit that their claims are just, and entitled to payment, out of the moneys in the plaintiffs’ hands. In reference to the claims of the first class, it appears that, previously to the contract of the society with Hawley & Wheeler, these claimants all stood in the relation of subscribers, who had each subscribed certain sums in aid of the erection of said church edifice; that Hawley & Wheeler, in the progress of their work on the church, having occasion for labor and materials to be furnished them, applied therefor to each of these persons, and, to induce them to furnish them, they agreed with them, that the society might pay them for such materials and labor as they respectively furnished, to the extent of each one’s account therefor, by- applying the same on their several subscriptions, and thus, to the extent of labor and materials furnished by each, cancelling his subscription, and if there was still a balance due him, it was to be paid him in cash by the society, and the amount thus paid, together with the amount of subscription cancelled, was to be charged by the society to Hawley & Wheeler, as payment on their contract for building the church. This arrangement was made known to the society, before the church was completed, and in every instance assented to; — 557 — and relying on arrangements of this sort, these claimants did furnish labor and materials, to the several amounts found by the committee, which have never been paid for, and as Hawley & Wheeler have become bankrupt, must be lost to the claimants, unless the contemplated application can be made. In view of the imposing equity presented by the statement of these claims, we have looked with some solicitude for an answer to them. First, it is said that the building committee, through whom the arrangements were made, had no power to assent to them on the part of the society. We do not think it necessary to determine the precise powers of a building committee, in the strict sense of the phrase. This committee was composed of the ordinary society’s committee, with others joined with them, and it appears that they all acted together in making the contracts, and in all that has been done in behalf of the society, in respect to said church edifice; and, as the report says, in the exercise of the powers given them by the society, and the society, through their counsel, on the hearing, expressed their assent to all that had been done, and so far as we know or believe, they continued to recognize their acts as properly done, up to the present time. Under these circumstances, we can not doubt their powers, both in respect to the original .contract, and all the other incidental arrangements made with the claimants. Next, it is claimed that the promise of the society to pay the claimants, was a promise to pay the debt of another, and therefore void within the statute of frauds; and, if otherwise, it was made without consideration, and therefore void on that ground. But this was not a promise to pay the debt of another. It was a promise, by the society, to pay their own debt to Hawley & Wheeler, or a portion of it, to the several claimants, and it was made in consideration of the extinguishment of the claimants’ demands against Hawley & Wheeler. The agreement between Hawley & Wheeler and the claimants, as — 558 — sented to by the society, operated to extinguish the claimants’ demands against Hawley & Wheeler, and as an assignment of them to the society, which, in some of the cases, is said to be the only exception to the rule, that a chose in action is not assignable at law. Butler, J., in Tatlock v. Harris, 3 T. R., 174. Ld. Tenterden, C. J., in Fairlie v. Denton, &c., 15 E. C. L. R., 246. Hodgson v. Anderson, 10 E. C. L. R., 247. The second class of claims, consisting of the claims of Edgerton and Elnathan Wheeler, stand upon different ground. These persons furnished materials, and rendered service in the construction of said church, each to an amount exceeding twenty-five dollars, at the request, and on the credit of Hawley & Wheeler, and within sixty days after they had ceased furnishing said materials, and performing such service, they each lodged with the town-clerk, a certificate, duly executed according to the provisions of the statute, each claiming a lien on the church, and the ground on which it stands, to the extent of their respective debts, and the question is, whether they are entitled to such lien,—or, in other words, whether a sub-contractor, who performs services, or furnishes materials in the construction, or repair of a building, on the credit and at the request of the contractor, without the assent of the proprietor, either in writing or otherwise, can maintain a lien upon the premises under our statutes, as they were when these debts were contracted? A majority of the court are of opinion that such a lien can not be maintained. The liens are claimed under the statute of 1852, which provides, that “every dwelling-house or other building, for the construction, or erection of which, any person shall have a claim for materials furnished or services rendered, exceeding the sum of twenty-five dollars, shall, with the land on which the same may stand, be subject to the payment of what may be due from the proprietor, and the same shall be a lien on such land and building, and shall take precedence,” &c. Stat. ed. of 1854, p. 644. This language is, we are aware, very comprehensive, and literally — 559 — read, is perhaps sufficient to embrace the claims of sub-contractors. But it should have a reasonable construction, and, read in connection with other statutes which it does not appear to have been intended to repeal, it seems to us that it was not intended to embrace them. There is no privity between a sub-contractor and the proprietor, and no liability, on his part, to pay the contractor’s debts, unless it is created by this statute. We have no occasion to doubt the competency of the legislature, even by an arbitrary expression of its will, to create a lien to the extent of the indebtedness of the proprietor to the first contractor, and to transfer it, by a sort of legislative assignment, together with the indebtedness, to the sub-contractor, for his security; still, when anything of this sort is claimed to have been done, the provision is so unusual, and contrary to what we are accustomed to consider a more reasonable course of legislation,- that courts will examiner! with care, before they give it such effect, and will require clear and unequivocal language in a statute, to authorize them so to construe it. This statute gives a lien for what may be due to any person from the proprietor. But unless it was the object of the statute to transfer the contract- or’s debt to the sub-contractor, there is nothing due from the proprietor to the sub-contractor, and, of course, nothing on which to predicate a lien. We, however, place more reliance upon the fact that, at the time the act of 1852 was passed, there was a statute in existence, in relation to this very subject of sub-contractor’s liens, providing, in express terms, that where they have claims to the amount of fifty dollars, or more, and their subcontracts are in writing, and assented to by the other party, they shall be entitled to a lien on the house or building constructed or repaired. Stat. 642, ed. 1854. It appears to us, that a statute, like this, which seems to have been carefully drawn and provides for a priority, by contract in writing between the sub-contractor and the proprietor, could not have been intentionally repealed in the indirect mode claimed, — 560 — with no mention or notice taken of it in the act under consideration. The object of the act of 1852 seems to have been to reduce the amount of indebtedness for which a lien may be claimed. Perhaps, also, it was thought that there might be a class of persons, not coming within the strict designation of sub-contractors, who might perform labor, or furnish materials, under circumstances justly entitling them to the benefits of a lien, to whom it was intended to extend the benefits of the statute. On the whole case, then, we advise the superior court to allow, and cause to be paid, out of the moneys in the plaintiffs’ hands, the debts of all the defendants except Edgerton and Elnathan "Wheeler, whose claims we advise the court to disallow and dismiss; and in respect to the.claim of Joseph B. French, described in the report of the committee, as the assignee of Hawley & Wheeler, that he be at liberty to prosecute the action in his favor, against the plaintiffs, to final judgment, deducting from the amount, which he might otherwise be entitled to recover, the several sums as aforesaid to be paid to the defendants. In this opinion the other judges concurred, except Waite, C. J., who dissented.