Roberts v. Gates

Mr. Justice Thornton delivered the opinion of the Court: The petition alleges that one of the petitioners, by virtue of a special contract, furnished materials to the defendant to be used in the erection of a building; and after the contract was nearly completed, the two petitioners formed a partnership—not as to material furnished, but as to future business—• and then a small additional quantity of materials was furnished to the defendant by the firm. The jury assessed damages to one petitioner at a certain sum, and also to botji petitioners at another sum, and decree was rendered., upon the verdict. Upon no principle can this decree be sustained. The goods were furnished under an express contract with one person, and the formation of the partnership gave to the incoming partner no lien by virtue of the contract. Upon the allegations of the petition no joint lien was created, and the «ourt had no power to declare a lien in favor of the partners. It may be that, after the partnership, both petitioners were equally interested in the goods then delivered, but this equal interest alone could not make a lien, and only the persons who have a lien are entitled to the benefit of the statute. The principle, that all persons interested in the subject matter should be made parties, has no application to this case. To entitle a person to be a petitioner, he must not only have an interest, but a lien within the purview of the statute. The 10th section of the statute referred to has reference only to persons who may be made parties defendant, or who may become parties by bills of interpleader, on account of liens held by them. This record also presents the anomaly of two verdicts, in . different rights, in the same cause. This is not allowable, and would make utter confusion of the simple and systematic common law practice. The decree is reversed and the cause remanded. Decree reversed.