Cahill, Collins & Co. v. Elliott

Ellison, J. — This action is to enforce a mechanic’s lien. Plaintiff is a -sub-contractor and defendant Miller is the owner of the building. Pierce Everett was the contractor and was made a defendant, but he died before the trial. His administrator was then made a party. The administrator admitted by answer the allegations of the petition. Plaintiff’s testimony was excluded by the trial court, and that is the principal reason for his appeal. The facts necessary for plaintiff to prove, since.he had no contractual relations-with . defendant Miller the owner, were that he sold the material to Everett, the contractor, and the price and amount thereof, as well as that it was for use on TIiller’s building. In other words the contracting [390] parties, the parties to the contract, were Everett and plaintiff. Everett was the sole contractor upon one side and plaintiff upon the other. Everett being dead, plaintiff the other party to the contract is disqualified. One of the issues here involved the question whether the material was sold for this building and was used therein, or was it sold on the individual credit of Everett? Everett, the other contracting party, being prevented by death from testifying to these things the plaintiff is disqualified. Such is the spirit and letter of the statute. The cases to be found in appellant’s brief deciding that though one party to a contract is dead the other may testify, are not applicable. Those cases are where there is yet a surviving party who made the contract, such for instance, as a surviving partner. The court having excluded the testimony of plaintiff gave a declaration to the effect that there was no competent evidence showing that the materials in con troversy “were furnished for the building and upon its credit.” The words italicised are criticised by appellant. Whether it is necessary in order for a sub-contractor to establish a mechanic’s lien against a building that he should take upon himself the burden to prove, affirmatively, that the material was furnished on the credit of the building, is not necessary to say. It may be conceded, and is perhaps true, that upon proof that material was furnished for a building it would be presumed to have been on its credit for lien purposes. If the fact was otherwise and the material was sold on the exclusive credit of the contractor, it could be shown in defense. But this case was tried without a jury and the words here criticised are doubtless merely cumulative on the previous expression, “for the building.” At any rate an examination of the evidence of the witnesses mentioned by appellant fails to sustain [391] his statement that the material was by them shown to have been furnished by plaintiff for the building, and this fact justifies the declaration. The plaintiff lived in 'Sri Louis and furnished goods to Everett, a dealer here. So far as the testimony of these witnesses is concerned, plaintiff knew nothing of where the goods were placed until after the buildings were completed. The judgment will be affirmed. All concur.