Benedict v. Danbury & Norwalk Railroad

Hinman, J. The plaintiffs, as assignees of John Q. Adams, seek to enforce a mechanic’s lien on the defendants’ passenger depot building, at the terminus of their railroad, in Danbury. Adams erected the building and did other work connected with the railroad, under contracts between him and Beard, Church & Co. Beard, Church & Co., were the contractors for the building of the whole road, and of certain buildings connected with it, among which was the depot building on which the lien is claimed. That portion of this work which Adams performed was done under four sub-contracts between him and the original contractors, but only one of these was in writing. The written contract was made in Nov. 1851, while the work was progressing under the former parol contracts, and he commenced work under it before he had finished work under the former contracts; and as payments were made from time to time, without any specific application of them, a question is made, whether the $1055, which is the balance due for his whole work, can be said to be due for work under the written contract any more than it is due under the parol contracts,—and whether the lien is not claimed for a general balance of account, which is not specifically referable to any contract; in which case, it obviously cannot be sustained. We have come to the conclusion, on other grounds, that the lien claimed in this case, cannot be sustained, and therefore do not decide this question. The certificate of lien was filed in May, 1852. The law then in force required a sub-contractor’s contract to be in writing, and to be assented to in writing by the party for whom a building was erected, or no lien was created in favor of the sub-contractor. Stat. Ed. 1854, — 327 — p. 642, § 2. Smith v. Cong. Soc. of Naugatuck, 23 Conn. 635. Consociated Presbyterian Soc. of Greens Farms v. Staples and others, 23 Conn. 544. And the original contract between the defendants and Beard, Church & Co., also provided that they should not underlet any part of the work without the written assent of the engineer of the defendants, upon the written application of Beard, Church & Co., therefor. And Beard, Church & Co., were bound to discharge any laborer from their employment, on the application of such engineer. The written contract with Adams was for the building of the passenger depot and two other buildings in Danbury; all for the sum of $4000. But there was no written assent of the defendants to this contract, by their engineer or otherwise, unless certain facts which appear in the report of the committee amount to such assent, and the principal question in the case is whether these facts do amount to such assent. There was no application in writing or otherwise to the defendants, or their engineer, for any such assent as was provided for by the contract between the defendants and Beard, Church & Co. But we place no reliance on this fact; because this was a stipulation introduced into the contract for the sole benefit of the defendants, and, not being one of the requisites of the statute, it was obviously competent for the defendants to waive it, and we suppose the written assent of the defendants to a sub-contract, would, without doubt, amount to such waiver. Coming then to the question, whether the facts relied upon by the plaintiffs are sufficient to show the written assent of the defendants to the sub-contract between Adams and the original contractors for the road, let us see what these facts are, and what inferences can fairly be drawn from them. It is claimed that it was the duty of the engineer to give his assent to this contract, because the contract between the original parties contemplated that sub-contracts would be made, and provided for his giving his assent thereto, on be — 328 — half of the defendants; and the presumption is, that he did not neglect his duty. But it no where appears that his assent was applied for, either by Beard, Church & Co., or by . Adams ; and, by the terms of the contract, there could be no neglect in this respect, until a proper application was made for his assent. Besides, if it be assumed that it was his duty to assent, this of itself amounts to nothing. Had there been circumstances going to show that he did in fact assent in writing, perhaps, in a doubtful case, the fact, that it was his duty to give such assent, might be entitled to consideration on the question. Without such circumstances, this supposed duty can not be held to be proof of the discharge of it. It is not the written assent required by law and this i§ not an application to compel the engineer, or the company to perform their duty in this respect. It is also said that this written assent need not be signed and that no particular formality is required in giving it. This may be admitted, still there must be the defendants’ assent to the sub-contract, and it must be in writing. It is pressed upon us that, because the engineer drew up the specifications for this building, and delivered them to Adams, he must, in this act, have known of and assented to the sub-contract. If he had drawn up the specifications and caused them to be inserted in the subcontract as a part of it, it might amount to the written assent required, especially as there does not appear to have been any dissent to it by any body. But, under what circumstances these specifications were made, whether they were drawn up before, or after the contract with Adams, and whether that contract refers to them in any way, no where appears. It cannot be presumed that important facts like these would have been left without proof, if there was anything in them favorable to the parties. Without some evidence, therefore, other than the naked facts that the engineer drew up the specifications for this building, delivered them to Adams, and at some time, or times, made interlineations and alterations in them, we cannot say necessarily that he must have as — 329 — sented to a contract that does not appear to have been before him. And perhaps it is not unworthy of note that he would hardly have ventured to make alterations and interlineations in these specifications, had they constituted any part of the contract between Adams and Beard, Church & Co. Similar remarks apply to the fact that the engineer superintended the work, and gave directions to Adams during its progress. This shows that he recognized Adams as engaged in the construction of the building, but it shows no recognition of the contract, much less a written recognition and assent to it. After the failure of Beard, Church & Co., the president and secretary of the railroad company ascertained from Adams the amount due him for work &c.; under his contracts, and at subsequent meetings of the directors, they voted to advance to the contractors, to be paid to Adams on account of buildings, a sum not exceeding eight hundred dollars ; and again, in the same form, a sum not exceeding five hundred dollars; and again on the 20th of Feb. 1852, they voted that the finance committee be authorized to make such advancement to pay for buildings as they thought proper. The sums mentioned in the two first votes were advanced according to the terms of them; and under the last vote, an order drawn by the contractors, Beard, Church & Co., in favor of Adams, for the sum of three thousand and twenty-five dollars, was accepted and paid, to the amount of twenty-two hundred dollars, on a stipulation that the payment was not an acceptance of the order for more than the amount paid. These votes do not purport to assent to the contracts with Adams. In this respect they are carefully guarded. They vote, to advance to the contractors, Beard, Church & Co., and because they say that it was to pay Adams, it only shows that they knew the contractors were indebted to him. But it does not recognize the debt, as one which they were — 330 — bound to pay, because Adams had a lien for it on their buildings. There is nothing in the votes or in the information communicated to the directors before they were passed, or in both combined, that shows they knew the terms of the contracts referred to. They do,it is true, recognize Adams, as a party who had performed work upon their railroad buildings, under contracts with the contractors. But they no more recognize the written contract, than any one or all of the parol contracts. They knew there were contracts between Adams and their original contractors. But this is not assent in writing to those contracts. And if, as is very probable, there was a kind of tacit assent to them—that is to say, if the defendants had no objection that Beard, Church & Co., should employ Adams to do a portion of the work which they had contracted to do themselves, it does not follow that they would not object to incumber their property by a lien for an indebtedness, the amount of which they only ascertained after the failure of the first contractors. The object of requiring an assent in writing to sub-contracts, certainly one important object, was to enable the general owner of property on which buildings were being erected, to know the extent of the incumbrance, to create that privity of contract between him and the sub-contractor, that should make it both equitable and legal that his property should be charged with the debt of another. The votes show that, to the extent of the money advanced under them, the defendants were willing to assist Adams in obtaining payment from the contractors, and this he has done. To use them now to subject the defendants for the full amount of his debt against the contractors, we think was not contemplated when they were passed, and ought not to be allowed. When the defendants accepted Beard, Church & Co’s order, and paid twenty-two hundred dollars on it, they required Adams to cause the depot building to be insured, and to assign the policy to them. Not much reliance was placed on this fact, as showing an assent in writing to his contracts — 331 — with the contractors. And it seems sufficient to say that we do not think it amounts to such written assent. The defendants made a question, whether the lien should not have covered all the buildings erected under the written contract, set out in the bill, but as we have decided the ease in their favor, on other grounds, it is unnecessary to consider it. We advise the superior court that the plaintiffs’ bill be dismissed. In this opinion Storrs, J., concurred, Waite, C. J., being absent. Bill dismissed.