Opinion
02-06-1891
WILLIAMS v. BRADFORD et al.
F. E. French, for complainant. H. Carrow, E. G. C. Blakely, J. W. Westcott, and H. M. Snyder, for defendants.
On bill of interpleader.
Revision N. J. p. 668, §§ 1, 3, are as follows: "(1) That every building hereafter erected or built within this state shall be liable for the payment of any debt contracted and owing to any person (a) for labor performed or materials furnished; (b) for the erection and construction thereof, which debt shall be a lien on such building and on the land whereon it stands, including the lot or curtilage whereon the same is erected." "(3) That whenever any master workman or contractor shall, upon demand, refuse to pay any person who may have furnished materials used in the erection of any such house or other building, or any journeyman or laborer employed by him in the erecting or constructing any building, the money or wages due to him, it shall be the duty of such journeyman or laborer or material-man to give notice in writing to the owner or owners of such building of such refusal, and of the amount due to him or them and so demanded, and the owner or owners of such building shall thereupon be authorized to retain the amount so due, and claimed by any such journeyman, laborer, or material-man, out of the amount owing by him or them to such master workman or contractor, giving him written notice of such notice and demand; and, if the same be not paid or settled by said master workman or contractor, such owner or owners, on being satisfied of the correctness of such demand, shall pay the same, and the receipt of such journeyman, laborer, or materialman for the same shall entitle such owner or owners to an allowance therefor in the settlement of accounts between him and such master workman or contractor, as so much paid on account "
F. E. French, for complainant.
H. Carrow, E. G. C. Blakely, J. W. Westcott, and H. M. Snyder, for defendants.
GREEN, V. C. Bradford L. Williams made a contract in writing with George F. Matthews for the construction of three houses on Birch street in the city of Camden. Said contract was made October 29, A. D. 1889, and was filed in the office of the clerk of said county November 4, 1889. In February, 1890, commencing on the 17th of that month, several persons claiming under the provisions of the mechanic's lien law (Revision, p. 668,§ 3) served notices upon Mr. Williams, each claiming a certain sum as for work done or materials furnished on the said buildings, and notifying him to retain the amount of each notice out of the amount owing by him to the contractor. Thereupon Mr. Williams filed a bill of interpleader, alleging that there was due from him to the defendant Matthews, the contractor, only the sum of $1,416.13, and asking that the defendants interplead on his paying the money into court. After some preliminary questions of pleading had been settled, a decree of interpleader was taken, and the cause has proceeded as between the defendants. Answers were filed by the following named defendants: R. M. Bingham, Joseph E. Hartman, Grant Stockham, Henry Fredericks, James H. Berryman, Pfeiffer & Son, Smith & Pfeiffer, Klosterman Bros., Alonzo Stites, Marshal & Stone, and Budd & Bros. The cause, being referred, came on for hearing at Camden on December 22, A. D. 1890, when the several parties appeared by their counsel, and with proof in support of their respective claims.
In Kirtland v. Moore, 40 N. J. Eq. 106, at page 109, the following are stated as the requisites to entitle a party to the benefit of section 3 of the mechanic's lien law: First. He must be a creditor of the contractor; not a general creditor, but a creditor whose debt was contracted for work done to the building erected by the contractor for the owner, or for material furnished for the building. Second. He must be a creditor whose debt is due. Before a workman or material-man can notify the owner of his claim he must put the contractor in fault. The statute says that, when the contractor shall, upon demand, refuse to pay the money or wages due, the owner may be notified. Until, therefore, the contractor has refused to pay what is justly due and in arrear, the statutory remedy is not applicable. Third. There must be a demand and refusal, and the demand must be for such an amount as the creditor is entitled to be paid at once. There can be no recovery against the owner of a lesser sum than that demanded of the contractor, becausethe finding that such lesser sum was the debt really due would, per se, show that the contractor was not in fault in refusing to pay. His obligation is to pay the money or wages due, and, if more is demanded, he has a right to refuse to pay. Fourth. The creditor must give notice, in writing, to the owner, of the contractor's refusal to pay, and of the amount by him demanded.
The first notice served on Mr. Williams was that of Robert M. Bingham, claiming $140 as due to him from Mr. Matthews for work done on the said bouses. This notice was served at 10:45 a. m. February 17, A. D. 1890. The objection urged to the allowance of this claim is that no demand of the amount due was made by Bingham upon Matthews, the contractor, after the same became due, which is clearly a prerequisite to the notice. The testimony of Mr. Bingham in chief would leave the impression that, after he had completed his work, he had made a demand upon the contractor for his money, and had not received any satisfactory response, and that thereupon he had served the notice which he did upon Mr. Williams, the owner. On cross-examination, however, it clearly appears that, after he had finished his contract and the money had become due to him, he did not make any demand therefor upon Mr. Matthews, but that he never saw him after that time. He says that he went to his dwelling to see him, but that he was refused by the wife and mother-in-law of Matthews, on the excuse that Matthews was sick. He testifies to a demand made upon the foreman of Matthews after the contract was finished. The testimony with reference to this is very indefinite; the name of the party is not given, nor is the time of the alleged conversation stated with any particularity; hut, if there had been no uncertainty as to this, the demand upon the foreman of the contractor would be clearly insufficient, as, without some insuperable impediment to doing so, the demand must be made upon the contractor in person. The theory of the statute is that he must be first placed in default, and in fault. The mechanic or materiai-man is to obtain a remedy over against the owner in consequence of such default or fault of the contractor, and he cannot be chargeable therewith except from his own personal refusal, or that of some person who clearly appears to be authorized to act in that regard for him. The position of a foreman of a contractor of this character without any evidence with reference to his authority, and judged simply from the character of the designation of his positon, would indicate that his authority was confined to the supervision of the mechanical work connected with the fulfillment of the contract. No opinion is intended to be expressed whether the demand upon the contractor can in no event be other than a personal one. I am of opinion that R. M. Bingham is not entitled to any portion of the fund in court.
Joseph E. Hartman served a notice in writing on Mr. Williams, February 17, A. D. 1890, at 10:45 a. m., for $150.75. Everything connected with this claim appears by the proofs to have been regular, and shows that he is entitled to be paid the amount of his claim out of the fund.
Grant Stockham served a notice upon the owner February 17, A. D. 1890, as follows: "Having furnished Mr. George Matthews with eight hundred dollars cash to pay labor done on houses Nos. 207, 209, and 211 Birch street, Camden, New Jersey, I will look to you for the payment of said amount. [Signed] Grant Stockham. Dated, February 15th, 1890." His testimony is that he was to raise money for Williams, and pay it to Matthews, and deduct the amount of money so paid from the money so raised, and that the advanced some $850. The testimony shows that Mr. Stockham was nothing more than a general creditor, and acquired no interest in this fund.
The New Jersey Trust & Safe-Deposit Company on February 17, A. D. 1890, at 12 m., served the following notice on Mr. Williams: "You are hereby notified that George F. Matthews is justly indebted to the New Jersey Trust & Safe-Deposit Company in the sum of six hundred and forty-eight dollars and thirty-three cents, for money loaned and advanced to said Matthews at his request, to be used in the purchase of material and the payment of labor used in the erection and construction of three certain dwelling-houses owned by you, situated on the north side of Birch street, Nos. 207, 209, and 211 in the city and county of Camden and state of New Jersey; and that said company has demanded pay merit from said Matthews of said sum of money so due and owing as aforesaid, and that he, the said Matthews, has refused to pay the same, or any part thereof. You are therefore hereby notified and required to retain the amount of money so due and claimed by said company out of the amount owing by you to said Matthews, and, upon being satisfied of the correctness of its demand, to pay the said sum of money to said company. Dated, February 17th, 1890." They were made parties defendant to the bill of complaint by reason of this notice. It is so alleged in the bill, and a copy thereof is annexed to the bill as an exhibit. No other or further claim appears by the bill of Matthews to have been made upon him by the trust company to a part of the fund due for building the houses. The trust company have put in no answer, and a decree pro confesso was taken against them. On the trial of the case they were represented by counsel, and were permitted to prove their claim, notwithstanding objection raised reserving the question of their right to any portion of the funds on the pleadings and evidence. As the case stood upon the pleadings, the trust company was nothing more than a general creditor of Mr. Matthews, and in no wise entitled to any interest in the money due on the contract. On the trial they offered in evidence the following paper: "Camden, New Jersey, February 15, 1890. B. L. Williams, Esq.—Dear Sir: Please pay to the New Jersey Trust & Safe-Deposit Company the sum of six hundred and forty-eight and 33-100 dollars, being amount advanced by said company on my contract with you for erection of houses 207,209, and 211 Birch street, Camden, New Jersey, and charge same to my account. [Signed] George F. Matthews." Although no less than 24 notices were served on Mr. Williams to retain portions of this fund for persons claiming the same, and he had with great care and precision indorsed on each the hour and minute he had received the same, and his counsel had annexed a copy of each of said notices to his bill of complaint, and set out the purport of each in his bill, there is no intimation on the record of any equitable assignments of a portion of this fund by Mr. Matthews in favor of the trust company. As stated, the testimony was objected to, but taken subject to the objection. Admitting that the paper would, on being delivered to Mr. Williams, operate as an equitable assignment of so much of the fund, the trust company, by the bill, were given notice of the other, as the only claim which Mr. Williams recognized as having been brought to his notice up to the verification of his bill, March 20, A. D. 1890. The trust company did not put in any answer, and they must be held to have accepted as their own the position assigned to them by the bill as claimants on any part of the fund. See Kirtland v. Moore, supra. But, if they were not concluded by their failure to answer, the testimony with reference to the time of service of this paper is not such as to entitle it to recognition as an assignment of the fund prior to the claims which have been properly proved. The proof is by Mr. Jones, a teller in the trust company. He testifies that the notice, a copy of which is annexed to the bill of complaint, was served February 17, 1890. at 12 o'clock noon, in the president'3 room of the New Jersey Trust & Safe-Deposit Company's building, Third and Market streets, on Bradford L. Williams, and that it was based on money paid for Mr. Matthews during his sickness, who, he says, was a customer of the company, and was sick, and that the money was paid for him during his illness. As to theotherpaper,—the order by Mr. Matthews on Mr. Williams in favor of the trust company,—he says that that paper was substituted for another paper, and that it was antedated to bear date on the 15th of February. The other one that he had was dated on the 17th of February. He says it was not given on the day it bears date, but was given to take up another dated on the same date, and that this paper was given on the 17th, or after that date, but when does not appear; and there is no evidence to show when this particular paper was served on Mr. Williams. The presumptions all are it was not served until after he had filed the bill of complaint in this cause. I am of opinion that the New Jersey Trust & Safe-Deposit Company is not entitled to any portion of the fund in court.
W. H. Wilkins & Co., on February 17, A. D. 1890, at 12 m., served a notice on Mr. Williams requiring the retention of $75 claimed to be due them from Mr. Matthews for mill-work. The claimants had not filed any answer, and no proof is offered with reference to this claim, and they are not entitled to be paid.
The next claim was that of Henry Fredericks, served February 17, A. D. 1890, at 12:45 P.M., for $304.85. The papers and proofs with reference to this claim seem to be regular, and I am of opinion that Mr. Fredericks is entitled to be next paid.
The claim of James H. Berryman was served February 17, A. D. 1890, at 12:45 p. m., for $250. The papers and proofs in this claim seem to be regular, and I am of opinion that Mr. Berryman is entitled to be next paid.
The claim of Pfeiffer & Son was served on February 17, 1890, at 1:10 p. m., for $583.70. The papers and proofs with reference to this claim seem to be regular, and I am of opinion that it should be next paid.
The claim of Smith & Pfeiffer was served February 17, A. D. 1890, at 1:10 p. m., for $393.47. The papers and proofs with reference to this claim seem to be regular, and I am of opinion that it is entitled to be next paid.
The next claim is that of Klosterman Bros., served February 17, A. D. 1890, at 2:40 p. m., for $204. Objection was made to this claim that the notice given by one of the firm of Klosterman Bros. was not signed individually by one of the claimants. It appeared, however, that the signature to the notice was written in the presence of the parties, and by their authority. In my judgment, this is a sufficient compliance with the statute, and I am of opinion that Klosterman Bros. are entitled to be next paid.
The next claim proved is that of Marshal & Stone, notice of which was served on Mr. Williams February 18, 1890, at 8 o'clock a. m., for $50.85. The papers and proofs with reference to this claim seem to be regular, and I am of opinion that Marshal & Stone are entitled to be next paid.
No other claims were proved.