Central Trust Co. of New York v. Chicago, K. & T. Ry. Co.

• Decision Date: 02 March 1893
• Citation: 54 F. 598
• Court: U.S. District Court — Western District of Missouri
• Parties: CENTRAL TRUST CO. OF NEW YORK v. CHICAGO, K. & T. RY. CO. (HOLTON-WARREN LUMBER CO., Intervener.

54 F. 598

CENTRAL TRUST CO. OF NEW YORK v. CHICAGO, K. & T. RY. CO.

(HOLTON-WARREN LUMBER CO., Intervener.

United States Circuit Court, W.D. Missouri, Western Division.

March 2, 1893

Butler Stillman & Hubbard and Phillips, Stewart, Cummingham & Eliot for complainant.

K. McC. Deweese and Lathrop, Morrow & Fox, for defendants.

Ashley & Gilbert, for intervener.

PHILIPS District Judge.

This controversy arises on exceptions to the master's report. The master has found that the intervener, the Holton-Warren Lumber Company, furnished railroad ties and other timber to the Chicago, Kansas & Texas Railway Company between the dates of November 28, 1890, and June 13, 1891, on a running account, leaving a balance due to intervener of $1,774.90 with interest thereon. The master also finds that the intervener is entitled to a mechanic's lien against the railroad and its appurtenances for the payment of said sum which lien, he reports, should have priority over the mortgages sought to be foreclosed in the original proceeding. To this finding and report of the master, the petitioner, the Central Trust Company, files exceptions, which exceptions will be considered in the order of their importance.

The first exception is that the mechanic's lien was not filed within the time prescribed by the statute of the state. The statute (section 6743) requires that such lien shall be filed 'within ninety days next after the completion of the work, or after the materials are furnished. ' It appears from the itemized account, as filed by intervener, that beginning on the 28th day of November, 1890, it delivered materials to said railroad, from time to time, up to and on the 9th day of February, 1891. The next item, and the last in the account, is June 13, 1891, for 150 cross-ties.

The contention of exceptor is that the lien should have been filed within 90 days after February 9, 1891, whereas, as shown by the master's report, it was not filed until the 8th day of July, 1891, five months after the 9th of February.

This presents a mixed question of law and fact, as to whether or not the account in question is what is known in law and common usage as a 'running account' under a continuous contract. If the materials were furnished under a single contract, and in fulfillment thereof, the items of the account would be continuous, and the material man would have 90 days from the date of the last item within which to file his account, and perfect his lien. Stine v. Austin, 9 Mo. 558; Carson v. The Daniel Hillman, 16 Mo. 256; Squires v. Fithian, 27 Mo. 134. On the other hand, if the several items of the account, or a portion of them, are for materials furnished under separate contracts, then the lien should have been filed within 90 days from the date of the last item under each independent contract. Livermore v. Wright, 33 Mo. 31. In respect to this branch of the inquiry, I shall accept the finding of facts, as reported by the master, to be correct. He finds that one Hanson was at the times in question superintendent of said railroad, and that the American Supply Company was a broker in furnishing railroad supplies, and was also acting as agent for the intervener, in placing orders for sales of lumber. The master finds that the contracts in question are predicated of written orders in the form of letters from said Hanson to said lumber broker. It is important in this connection to observe, not only that these letters or orders are of different dates, but that they call for separate characters of material. The first is of date September 20, 1890, and calls for 577 pieces of white oak and yellow pine, in various quantities and sizes, and for certain description of pilings. The next order was October 15, 1890, for 3,500 second-class ties, at specified prices. The next was November 19, 1890, which directed that the said American Supply Company would please arrange to furnish the railroad company 5,000 first-class ties, 'with such second-class as may come in loading the first-class ties,' at 54 cents, to be paid January, 1891; also, certain switch ties, and 500 3' x10', 16', at $21 per M. The final order was dated November 22, 1890, which called alone for a given number of piles. The orders of October 15th and November 19th called exclusively for ties, with the exception of item '500 3' x10', 16'.'

There is no apparent connection between these respective orders, unless it be as to the two calling for railroad ties. It must, therefore, be considered that they are so far independent transactions as that, had suit been predicated of them, they could not have been declared on in one count, but each order, at least in so far as it calls for a class of materials different from another order, would necessarily have to be counted on separately, as an independent contract; and, constat, a recovery on one of the bill of items furnished under one order would constitute no estoppel to an action on items furnished under another order, whereas, if the account be a continuous one, or ended under one contract, it could not be split up, and sued on in detail, and a recovery on one item would be a bar to any further suit on other items. Flaherty v. Taylor, 35 Mo. 447. The letter of September 20, 1890, called for a given number and particular description of pieces of white oak and yellow pine lumber, and a given quantity and description of pilings. The letter of November 22nd called only for a given number of piles, of specified lengths. The letters of October 15th and November 19th called for a given number of ties, with the single exception of the '500 3' x10', 16';' and as this last material-- '500 3' x10', 16','-- was furnished in kind, as shown by the account, that part of the order was filled, and the transaction concluded. Pilings were delivered, according to the account, in December, 1890, ending on December 6th. Oak pieces, but no pine, were furnished, beginning February 3, and ending February 9, 1891. No item of this character was delivered after these dates. The account shows that the whole quantity of oak pieces ordered, and more, was furnished by February 9th. The whole number of pieces furnished amounted to 577. And it is quite inferential, from the subsequent conversations and correspondence between Hanson and the lumber brokers and intervener, that the parties regarded or treated this part of the contract as practically completed, as the whole conversations and correspondence indicated that the expectations and calculations were in respect of the further delivery of railroad ties. To prolong the life of this part of the account, therefore, to the 8th day of July, 1891, when the lien was filed, the intervener is driven to rely upon the delivery of 150 ties made on June 13th, a delivery resting for its authority upon an independent order and contract. It must follow, as to the items of the account for 'piles or piling' and oak pieces, the exception to the report is sustained.

Respecting the ties, the facts are different. The ties ordered October 15th were 3,500 second-class and 3,000 first-class. The order of November 19th was for 5,000 first-class ties, with such second-class as might come in loading the first. The whole number of first-class ties delivered up to and including February 9, 1891, was 1,654, and 749 second-class; so neither of these orders was completed on 13th day of June, when the final delivery of ties was made. As both orders of October 15th and November 19th call for first and second class ties they may properly be regarded as continuing orders, and parts of one contract. 'Where two distinct contracts are in fact made, as for different parts of the work, the work done...