In regard to bills of exceptions, federal courts are independent
of any statute or practice prevailing in the courts of the state in
which the trial was had.
Under the pleadings as framed and the issues as made up in this
case, the court was bound to admit evidence.
In the absence of a specification wherein evidence offered was
improper or irrelevant, this Court is bound to presume that it was
properly admitted.
A matter resting in the discretion of the trial court is not
assignable for error here.
The overruling of a motion for a new trial in the court below
cannot be assigned for error.
A general exception to the charge of the court as a whole cannot
be considered here.
A mechanics' lien is a creature of statute, not created by
contract, but by statute, for the use of the materials, work, and
labor furnished under the contract, and the contract is presumably
entered into in view of the statute.
It is settled law in Missouri that a contractor does not waive
his right to file a mechanic's lien by receiving from the owner of
the building a promissory note for the amount due, payable at a
time beyond the expiration of the period within which he is
required to file his lien; but,
Page 142 U. S. 129
the period within which suit must be commenced to enforce the
lien, the taking of the note merely suspends the right of
action.
The plaintiff agreed to construct a flour mill for the
defendant, the work to be done at a specified day. After the
expiration of that day, defendant wrote to plaintiff that the mill
was satisfactory, but that the corn-rolls did not work to his
satisfaction, and that when they were made to do satisfactory work,
he should be ready to pay for the entire work. This was completed
and accepted within about two months.
Held that this
amounted to an agreement to pay if the completion was done within a
reasonable time, and that this was a question for the jury to
determine under proper instructions from the court.
The Court stated the case as follows:
This was an action under a statute of Missouri to have a
mechanic's lien declared and enforced against certain described
property, consisting of a mill and grounds, situated in Marshall in
that state. It was originally brought in one of the state courts by
the Stillwell & Bierce Manufacturing Company, an Ohio
corporation, claiming under an assignment from one Fred. J. Schupp,
against the plaintiff in error, C. H. Van Stone, and was
subsequently removed into the federal court on the ground of
diverse citizenship of the parties. The amended petition, framed
under the code practice of the state, contained three counts. The
first was a declaration of a written contract between Schupp and
Van Stone, dated January 16, 1885, by the terms of which the former
agreed to construct in the elevator building of the latter, in
Marshall, a flouring mill, on the improved roller process, with a
capacity of making from fifty to seventy-five barrels of flour a
day and of grinding from three hundred to four hundred bushels of
corn into meal in a day of twenty-four hours. The contract further
stipulated that the mill should be constructed in a good and
workmanlike manner, and when completed should be up to the standard
of other mills, and particularly a certain mill known as the
"Aulville Mill," at Aulville in that state, and should be
satisfactory to one Frank Summerville, whose opinion in that
respect was to be binding on both parties to the contract, and that
the materials used in its construction, with the exception of such
as were on the premises, should be furnished by Schupp,
Page 142 U. S. 130
who was also to be at all the expense of such construction, the
mill to be completed and ready for use before August 1, 1885. The
price agreed upon for the construction of the mill was $8,200, $500
to be paid April 1, 1885, $500, May 1, 1885, $1,200 upon the
delivery of the mill, and for the remainder, $6,000, Van Stone was
to give to Schupp his three equal promissory notes of $2,000 each,
due in one, two, and three years, respectively, with interest at 7
percent per annum, payable annually, and which were to be "well
secured" on real estate, the sufficiency of such security to be
determined by one William H. Wood, of Marshall, or, in the event of
his failure to act, by J. H. Cordell, of the same city. The
petition further alleged that Schupp complied fully with the terms
of the above contract except as to the time when the mill was to be
completed, the machinery for grinding corn not working
satisfactorily at that time, but that, upon this point, the
defendant by an instrument in writing waived his right to demand a
full compliance, and agreed to pay for the entire work when that
portion of it was completed, at the same time accepting all that
part of the work intended for making flour, and that afterwards,
to-wit, on the 16th of October, 1885, the mill was completed to the
satisfaction of said Summerville, and was accepted by the
defendant, and was turned over to him, he waiving all exceptions on
account of its not having been completed within the time specified
in the contract, and at various stated times previous thereto
having paid thereon a total sum of $3,044.12. It was then alleged
that the defendant failed and refused to pay the remainder due on
the contract or to execute his notes therefor, as agreed upon,
whereupon Schupp took such proceedings under the Missouri statute
as entitled him to a mechanic's lien on the mill and the grounds on
which it was situated for the balance due him on the contract,
to-wit, $5,392.53, and that Schupp afterwards, for a valuable
consideration, assigned and transferred to the plaintiff all his
accounts against the defendant arising out of the contract or in
any wise connected with it, including said mechanic's lien,
wherefore plaintiff became entitled to recover from the defendant
said sum of $5,392.53, with interest, etc.,
Page 142 U. S. 131
and also to a mechanic's lien upon the property referred to, for
which amount it prayed judgment and asked that the same he made a
lien upon the property aforesaid, as provided by law. The second
count was in the nature of a count in assumpsit for labor
performed, materials furnished, money paid out, expended, etc., and
sought a recovery against the defendant for the value of the work
and labor performed and material furnished by Schupp in the
construction of a mill for the defendant, in a like amount as in
the first count stated, and asked an enforcement of a mechanic's
lien upon the mill property, as was done in the first count. The
third count was for extra labor and materials furnished by Schupp
in building a mill under a contract with the defendant, and like
relief was asked. The answer admitted the contract declared upon in
the first count, but denied every other allegation of the petition,
especially those respecting the performance by Schupp of his part
of the contract, and the waiver by defendant as to the time of the
completion of the mill, and claimed damages for the failure of
Schupp to complete the mill within the time specified in the
contract, in excess of the amount claimed by the plaintiff to be
due thereon. A replication was filed, and the case proceeded to
trial before the court and a jury, resulting in a verdict and
judgment in favor of the plaintiff for the sum of $5,898.85,
including interest, which judgment was made a lien upon the mill
property under the provisions of the state statute. To reverse that
judgment, this writ of error is sued out.
There was no assignment of errors annexed to and sent up with
the record, as provided by Rev.Stat. § 997, but in the brief
of counsel for plaintiff in error the following assignment
occurs:
"(1) The court erred in admitting any evidence in the case."
"(2) The court erred in submitting the case to the jury, and
entering up a judgment upon the verdict."
"(3) The court erred in refusing to sustain the demurrer to the
evidence offered by plaintiff in error. "
Page 142 U. S. 132
"(4) The court erred in overruling the motion for new trial
asked by plaintiff in error."
"(5) The court erred in overruling the motion in arrest of
judgment, asked by plaintiff in error."
"(6) The court erred in entering up judgment recognizing and
enforcing a mechanics' lien."
"(7) The court erred in construing Exhibit A (which is letter of
Van Stone to Schupp, found at 16 of printed record) to be a waiver
of the time in which the mill was to be completed."
"(8) The court erred in overruling the demurrer to the evidence.
"
Page 142 U. S. 133
MR. JUSTICE LAMAR delivered the opinion of the Court.
It is manifest from an inspection of this assignment that it is
entirely too general to meet the requirements of the 21st rule of
this Court. It was evidently framed with reference to the code
practice of the state in which the cause was tried; but nothing is
better settled in this Court than the proposition that
"in regard to . . . bills of exceptions, courts of the United
States are independent of any statute or practice prevailing in the
courts of the state in which the trial was had."
Fishburn v. Chicago, Milwaukee &c. Railway Co.,
137 U. S. 60. We
shall, however, refer to the errors assigned in detail, more for
the purpose of showing the insufficiency of most of them under the
rule than to go into the merits of the case upon the questions thus
attempted to be raised.
It requires nothing more than a mere statement to show that the
first error assigned is without foundation. Under the pleadings as
framed and the issues thus made up, it was not only not error for
the court to admit evidence in the case, but it would have been a
grave error to have refused to allow the admission of evidence.
Moreover, the record fails to show that any objection of any kind
or character was made by plaintiff in error to the introduction of
evidence.
With respect to the third and eighth errors assigned, it may be
said that they are as untenable as the first. A general demurrer to
the evidence was interposed by the plaintiff in error at the close
of the testimony offered by the plaintiff below,
Page 142 U. S. 134
(defendant in error), and the same was overruled, to which
ruling an exception was taken and duly noted. There had been some
evidence offered in support of the contention of the plaintiff, and
the weight of it, under the law, was for the jury to determine. It
is not specified wherein the evidence offered was improper or
irrelevant to prove the issue; and, in the absence of such showing,
we are bound to presume that the court committed no error in this
respect. The assignment is too general, under the rule. Moreover,
such a motion or proceeding is addressed more to the discretion of
the court than to the merits of the cause. In the language of this
Court in
Suydam v.
Williamson, 20 How. 427,
61 U. S.
436:
"A demurrer to evidence is defined by the best text writers to
be a proceeding by which the court in which the action is depending
is called upon to decide what the law is upon the facts shown in
evidence, and it is regarded, in general, as analogous to a
demurrer upon the facts alleged in pleading. When a party wishes to
withdraw from the jury the application of the law to the facts, he
may, by consent of the court, demur in law upon the evidence, the
effect of which is to take from the jury and refer to the court the
application of the law to the facts, and thus the evidence is made
a part of the record, and is considered by the court as in the case
of a special verdict. A mere description of the proceeding is
sufficient to show that it is the evidence, and nothing else, that
goes upon the record. Since it was determined that a demurrer to
evidence could not be resorted to as a matter of right, it has
fallen into disuse, and as long ago as 1813 it was regarded by this
Court as an unusual proceeding, and one to be allowed or denied by
the court in the exercise of a sound discretion, under all the
circumstances of the case,"
citing
Young v.
Black, 7 Cranch 565;
United
States Bank v. Smith, 11 Wheat. 171;
Fowle v. Common Council of
Alexandria, 11 Wheat. 322. Being a matter resting
in the discretion of the trial court, the action of that court in
the premises is not assignable for error.
With respect to the fourth error assigned, it is sufficient to
say that the overruling of a motion for a new trial in the court
below cannot be assigned for error, and no authorities need be
cited in support of the proposition.
Page 142 U. S. 135
The second error assigned is equally vague and without merit. It
could not have been error on the part of the court to submit the
cause to the jury upon the evidence adduced. The evidence was
relevant upon the issues as framed, and the weight to be given to
it lay with the jury, who were the proper arbiters of the facts in
the case. There was a general exception to the charge of the court
as a whole, but such an exception cannot be considered here, under
well settled rules of law.
Lucas v.
Brooks, 18 Wall. 436;
Burton v. West Jersey
Ferry Co., 114 U. S. 474. The
verdict was responsive to the issues, and the judgment of the court
followed, as a matter of course.
Pomeroy's
Lessee v. Bank, 1 Wall. 592,
68 U. S.
598.
The fifth and sixth alleged errors go more to the merits of the
action than any we have yet considered.
"A motion in arrest of judgment can only be maintained for a
defect apparent upon the face of the record, and the evidence is no
part of the record for this purpose."
Bond v. Dustin, 112 U. S. 604,
112 U. S. 608;
Carter v.
Bennett, 15 How. 354. To bring the case within this
rule, it is argued that no evidence was offered tending to show a
compliance on the part of the plaintiff or its assignor with the
mechanic's lien law of Missouri, and that, upon the verdict
rendered by the jury, the court was without authority to enter up a
judgment recognizing and enforcing such a lien. It is manifest that
the motion in arrest of judgment can be sustained only upon the
theory that the court was without any authority to enter up a
judgment recognizing and enforcing a mechanic's lien upon the
property, since that would be the only defect upon the face of this
record which we could consider upon such a motion. The argument
against the right of the court to enter up a judgment recognizing
and enforcing a mechanic's lien is based on the theory that the
contract between Schupp and Van Stone, under which the mill was
built, providing, as it did, for the payment of the price in
installments to become due after the time limited by the statute
(nine months) within which an action to enforce the lien is
required to be commenced, which deferred payments were to be
secured upon real estate of the plaintiff in error, was an express
waiver of the lien, and
Page 142 U. S. 136
the breach of that contract by Van Stone did not restore to the
contractor his right to claim a lien. This argument rests upon a
misconception as to the nature and character of a mechanic's lien.
This lien is a creature of the statute, and was not recognized at
common law. It may be defined to be a claim created by law for the
purpose of securing a priority of payment of the price and value of
work performed and materials furnished in erecting or repairing a
building or other structure, and as such it attaches to the land as
well as the buildings erected thereon. 15 Amer. & Eng.
Encyc.Law 5. Now it is not the contract for erecting or repairing
the building which creates the lien, but it is the use of the
materials furnished and the work and labor expended by the
contractor, whereby the building becomes a part of the freehold,
that gives the materialman and laborer his lien under the statute.
The lien is brought into operation by virtue of the statute, and
the contract for building is entered into presumably in view of, or
with reference to, the statute. The rule seems to be established in
Missouri, and it is so in many of the other states, that a
contractor does not waive his right to file a mechanic's lien by
receiving from the owner of the building a promissory note for the
amount due, payable at a time beyond the expiration of the period
within which he is required to file his lien, but within the period
within which suit must be commenced to enforce the lien, the taking
of the note merely suspending the right of action.
McMurray v.
Taylor, 30 Mo. 263;
Ashdown v. Woods, 31 Mo. 466;
Jones v. Hurst, 67 Mo. 572. This rule is based upon the
principle, recognized in that state, that the execution of a note
for a preexisting debt is not a payment of the debt, but only
presumptively so; but a party relying upon that principle must, in
an action on the original debt, produce the note for cancellation.
Authorities last cited;
Brooks v. Mastin, 69 Mo. 63;
Doebling v. Loos, 45 Mo. 152. Under this rule of law, the
contention of the plaintiff in error must fail, for
a
fortiori would the right to file the lien remain where, as in
this case, no notes were given at all, but the agreement to give
them was broken by the owner of
Page 142 U. S. 137
the building and premises. That agreement out of the way, the
contractor or builder or materialman occupied a status created by
the law --
viz., possessed of a right to claim a
mechanic's lien. This claim, it is admitted in the record, he
asserted in accordance with the law, and this suit was brought by
his assignee for the enforcement of such claim. The original
contract for payment of the amount due on the contract in
installments having been broken by the plaintiff in error, the
defendant in error had the right to elect to declare the whole sum
due at once and proceed to the enforcement of its lien. It follows,
therefore, that there was no error in the action of the court in
entering up a judgment recognizing and enforcing such lien. That
being true, there was no error, so far as this record shows, in
overruling the motion made in arrest of judgment.
But one alleged error remains to be considered --
viz.,
the seventh. Exhibit A, referred to therein, is a letter from Van
Stone to Schupp, as follows:
"Marshall, Mo. Aug. 6th, 1885"
"F. J. Schupp, Esq., Marshall."
"Dear Sir: The flour mill put up by you for me is satisfactory
to me and is hereby accepted. The corn-rolls do not work to my
satisfaction. Whenever such rolls are put in or shall do
satisfactory work."
"C. H. Van Stone"
It is urged that the court below erred in construing this letter
to be a waiver of the time within which the mill was to be built.
So far as concerns that portion of the letter relating to the part
of the mill used for the manufacture of flour, it is an
unconditional acceptance. It could not be made more positive. Nor
do we think the latter part of the letter, relating to the
corn-rolls, is susceptible of any other construction than the one
put upon it by the court. By the language there used, the plaintiff
in error bound himself to pay for the entire work whenever it
should be completed so that the corn-rolls
Page 142 U. S. 138
would do satisfactory work. There is nothing in that letter to
indicate that any particular time was in the minds of the parties
as to when such work was to be completed. Of course, the law
implies that the completion of the work should not be unnecessarily
prolonged. It should be done in a reasonable time. It was completed
on or before October 16, 1885, for on that day it was accepted as
satisfactory by Summerville, who, as before stated, had been agreed
upon as a referee to determine when the mill did satisfactory work.
Whether the period between August 6th and October 16th, during
which time the corn-rolls were being perfected, was an unreasonable
time or too great a delay was in reality a question for the jury to
determine under proper instructions from the court. As no error is
assigned to the charge of the court in this respect and no
exception was taken to the charge as given except to it as an
entirety, it must be presumed that no error was committed in this
behalf and that the jury found all the elements of an acceptance by
the plaintiff in error of the completed mill.
Judgment affirmed.
