Knight v. Norris

Beret, J. By the Gowrt. Section 1, Oh. 90^. 589, Gen. Stat., provides that “ whoever performs labor or furnishes — 475 — materials or machinery for erecting, constructing, altering or repairing any house * * or other building, * "" by virtue of a contract or agreement with the owner or agent thereof, shall have a lien to secure the payment of the same,” &c., &c.' Seo. 7 of 'the same chapter provides, that “ any person entitled to a lien under Seo. 1, aforesaid, shall make an account in writing of the item of labor, skill, material and machinery furnished, or either of them, as the case may be,” and that such account when verified,' &c., shall operate as a. lien. Under the provisions of this chapter the plaintiff, claims a lien for labor by him performed in erecting and constructing a building, which labor is described in his account filed under ’ the statute, as “ plans, specifications, and superintending of building, at five percent, on estimated cost ($38,780,) $1,939.” We are of opinion that services of the kind for which the plaintiff seeks the lien are embraced in the meaning of the statute. In rendering such services a party certainly “ performs labor,” and furnishes labor and skill. The labor is performed and the labor and skill furnished “ for erecting” and “ constructing ” a building. It is remarked by Merrick, J.,. in Parker et al. vs. Bell et al., 7 Gray, 432, “ the Legislature ' have regarded it as a sound and just principle, that all those, who have by the consent of the owner, or in pursuance of contracts with him for that purpose, contributed to increase the value of his property, should have an interest in it until their respective claims for such services shall have been paid and discharged.” Our Legislature had we think, substantially the same object in view. The labor and skill of an architect and superintendent of the work upon, a building are a part of the expense of erecting a building, and not unfrequently an indispensable and highly valuable part. As an item of such expense, they ep — 476 — ter into and help to form the value of the building, and we can conceive of no sound reason in the nature of things why the person who performs such labor, and furnishes such skill, should not receive the s'ame protection "as the carpenter, the mason, the lumber dealer, or the hardware merchant; and as before remarked, we are of opinion that the services for which the plaintiff claims a lien are covered by the statute. See Bk. of Pennsylvania vs. Gries, 35, Penn. State, 423. This disposes of what we understand to be the main point relied upon by the defendants. There are, however, several minor points made, which we will briefly consider. The defendants insist that the plaintiff’s contract was enti/re, and that the filing of the lien before the building was finished was premature. It appears that when the building was finished, with perhaps the exception of putting on the cornice, work on the same was suspended for several months, and that during such suspension the plaintiff’s lien claim was filed; that the suspension was not occasioned by any fault on the part of the plaintiff; that his plans and specifications were completed before the suspension; and that the amount of his claim was computed with reference to the cost of the building, exclusive of what remained to be done upon it at the time when the lien claim was filed; and 'it further appears that no price for his services was agreed upon, but that he was to receive what the same were reasonably worth. Under this state of facts we think that he was. justified in filing his lien claim when he did, and claiming the value of the services rendered by him up to that time, following the contract as far as he was able. The suspension of the work without any fault on his part, should not have the effect to deprive him of his lien, or to postpone his right to the remedy provided by the lien laws to enforce and secure his claim. Young vs. Lyrman, 9 Barr., 450; 35 Penn. St., 427. It is further insisted — 477 — by the defendants that the evidence was insufficient to establish the charge of superintending. As to the fact that the plaintiff did superintend the work, we think there was no lack of evidence. As to the fact that such superintendence was part of the services contracted to be performed, the plaintiff testifies that McOargar came to his office, and wished to engage his services to build McCargar’s block, as architect; that his services were in making plans and drawings, and superintending the erection of the building, and giving directions; that when he showed McOargar two designs, McOargar selected one, and said: “ Go ahead with that as' fast as you can;” that at the first interview McOargar said he wanted the plaintiff to prepare plans, and get up the best building in St. Paul; that he, the plaintiff, was at the building, <£ superintending with McOargar.” Thomas Fitzpatrick testified that he performed the carpenter work on McOargar’s block, and attended to the execution of the drawings generally, on the whole building; that he was employed by McOargar, and. attended to carrying out the plans, making patterns for stone cutters, £&c, that is, subject to Mr. Knight’s approval; and that McOargar told him, for any information, he should go to Mr. Knight, and he would give it to him; that McCargar told him this about the time he commenced work; that he did consult with Knight; that Knight superintended the whole ;|passed frequently and looked at the building ; that Knight stayed there ten or fifteen minutes when he came; as a general rule one-fourth of an hour or less ; that he came along three times a day, most every day. We are of opinion that the testimony had a reasonable tendency to establish the charge for superintending, and therefore, that the point made by the defendants is not well taken. The plaintiff upon the trial testified as follows : — 478 — “lie (McOargar) expressed himself satisfied with my services, and said he would make no objection to my claim. That was last fall or winter after suit was brought.” The defendant moved to strike out this piece of testimony on the ground that it appeared that the statement testified to was made after suit was brought, and after the rights of the defendants had attached on the premises, and because the same is .incompetent and hearsay testimony. The referee refused to strike out the testimony objected to. ■ To our minds this testimony, admitting. that it was hearsay, possesses no particular importance in any point of view. “ He expressed himself satisfied with my services,' and said he would make no objection to my claim.” What services and what claim ? The claim that the plaintiff made plans and specifications for the building is not disputed. The claim that he superintended the work is disputed. Certainly there is nothing in what McOargar said to show that he recognized the latter claim; no acknowledgment that the plaintiff had performed any services in the way of superintendence. The plaintiff testifies that he had never presented any account to McOargar. The retention of testimony so indefinite, and so valueless, as it appears to us, could not, so far as we can see, prejudice the defendants, and we think it furnishes no reasonable ground for a new trial. The last point urged by the defendants is that the lien claim does not conform to the statute; that it'does not describe the charge or services, and is otherwise too vague; that it is not an account in writing of the item of labor. The labor performed is described in the account as “plans, specifications and superintending of building,” and the building is described and located, and the time of the performance of the labor, together with its price designated. From the character of the labor, it could not be expected that it would be itemized so — 479 — as to give the hours and fractions of hours during which the services were being performed. There was in reality but one item. The charge is made as would seem to be customary and reasonable in the gross. We think the account sufficiently specific. This disposes of all the points made by the defendants, and as we discover no error, the order refusing a new trial is affirmed.