Goudie v. Am. Moore Peg Co.

• Decision Date: 05 June 1923
• Docket Number: No. 1888.,1888.
• Citation: 122 A. 349
• Parties: GOUDIE v. AMERICAN MOORE PEG CO.
• Court: New Hampshire Supreme Court

122 A. 349

GOUDIE

v. AMERICAN MOORE PEG CO.

No. 1888.

Supreme Court of New Hampshire. Grafton.

June 5, 1923.

Exceptions from Superior Court, Grafton County.

Suits to enforce liens by P. B. Goudie, by William T. Perns, and by the Buffalo Porge Company, Inc., against the American Moore Peg Company, and by the United Shoe Machinery Company and by the Emerson Dry Kiln Company against one Morgan, receiver of the American Moore Peg Company. The court ruled that notes and acceptances taken by some of the plaintiffs were not taken in discharge of the amount due and of the lien, and that plaintiffs could enforce their liens by attachment, and reserved the question of the sufficiency of the writ of one of the plaintiffs, and the question of priority between the lienors as important questions of law, and defendant receiver excepts. Case discharged.

Goudie, Perns, and the Buffalo Porge Company bring suit to enforce builders' liens. Laws 1905, c. 41; P. S. c. 141, §§ 10-18. In the writs in the Goudie and Buffalo Porge Company suits there was a special command directing an attachment to secure and preserve the plaintiffs' lien. The sheriff's return followed the command. The writ in the Perns suit contained the recital: "This writ is brought for the purpose of securing a mechanic's lien." There was no command for a special attachment, but the sheriff returned a special attachment of the defendant's mill for the purpose of securing the plaintiff's lien thereon. In the writ in the Buffalo Forge Company suit the sheriff was specifically commanded to attach certain machinery furnished by the plaintiff, as well as the buildings and land, and returned an attachment according to the mandate of the writ.

The attachments were made in the following order: Goudie; Ferns; Buffalo Forge Company. The plaintiffs' rights of action severally accrued as follows: Buffalo Forge Company; Goudie; Ferns. They severally began work as follows: Ferns; Goudie; Buffalo Forge Company. The amount of the plaintiffs' claims is: Goudie, $1,768.50; Ferns, $2,103.83; Buffalo Forge Company, $1,764.30, with interest and costs. Notes and trade acceptances were accepted by the plaintiffs on account of their several claims. The notes given Goudie and Ferns were payable at a time when their liens would have expired if no action had been brought. The court found that the notes and acceptances were not taken in discharge of the amount due and of the lien, and ruled that the plaintiffs could enforce their liens by attachment, and reserved the question of the sufficiency of Ferns' writ, and also the question of priority between the lienors, as important questions of law.

The United Shoe Machinery Company and the Emerson Dry Kiln Company ask for the return of property sold by them to the Moore Peg Company upon the condition that the title should remain in the vendors until paid for. The property furnished by the Emerson Dry Kiln Company has not been affixed to the real estate or attached. The machine furnished by the United Machinery Company has been fastened to the floor of the mill by lag screws and connected with other machinery by belting, but has not been specifically attached. The property, when sold to the partnership, was not in this state. The American Moore Peg Company is a corporation organized under chapter 92, Laws 1919. The incorporators were the persons who composed a partnership known as the Moore Peg Company. The corporation succeeded to all the property and rights of the partnership and assumed all its liabilities.

The title to the real estate was by a deed held in escrow until a balance of $8,000 should be paid. This sum has been paid by a receiver, who excepted to the foregoing rulings. The court ruled that the receiver's certificate, Issued to raise the $8,000, had priority over all liens.

Shurtleff, Oakes & Hinkley and E. C. Oakes, all of Lancaster, for Goudie.

Raymond U. Smith, of Woodsville, for Buffalo Forge Co.

Murchie & Murchie and A. Murchie, all of Concord, for Ferns.

Allen Hollis, of Concord, and George W. Pike, of Lisbon, for American Moore Peg Co. and its receiver.

Walter Bates Farr, of Boston, Mass., for United Shoe Machinery Co.

Ben S. Webb and Clark B. Frost, both of Lisbon, for Emerson Dry Kiln Co.

PARSONS, C. J. "No lien shall be defeated by taking a note, unless it was taken in discharge of the amount due and of the lien." P. S. c. 141, § 18. Whether the notes and acceptances were taken in discharge of the amount due and of the lien depends upon the understanding of the parties at the time. Calef v. Brinley, 58 N. H. 90. What that was is a question of fact, upon which the date of payment is merely evidence. Moore v. Fitz, 59 N. H. 572. If, as the words of the statute seem to imply, the burden rests with one claiming the defeat of the lien by the taking of a note, the exception to the finding of the court cannot be sustained, unless the evidence conclusively establishes the contrary; while, if the burden rests with the party claiming the lien, the finding must be sustained, if there was any substantial evidence to support it. As the evidence upon which the court found the notes and acceptances were not given in discharge of the amount due and of the lien is not transferred, neither question is brought here by the exception to the finding of fact.

"Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues, the writ and return thereon distinctly expressing that purpose." P. S. c. 141, § 17. The Ferns writ is claimed to be defective, in that the mandate of the writ does not command the sheriff to attach the property upon which the lien is claimed for the purpose of securing it. The contention is supported by authority. Bryant v. Warren, 51 N. H. 213; Hill v. Callahan, 58 N. H. 497; Wason v. Martel, 68 N. H. 560, 39 Atl. 438; Hopkins v. Rays, 68 N. H. 164, 44 Atl. 102, 73 Am. St. Rep. 554. If the contention is sound Ferns' attachment falls behind the others who have properly secured their liens. His attachment, however, is good against the defendant Peg Company and any liens thereafter attaching. When or upon what grounds the receiver was appointed does not appear. No question as to the validity of his appointment has been raised. Whenever and upon whatever grounds he was appointed, he took the property subject to all existing liens. High on Receivers (4th Ed.) §§ 138, 440. If the attachments were all made before the receiver's appointment and possession, an attachment lien without reference to whether a mechanic's lien was thereby secured is valid as against him. The object of the statutory provision requiring the purpose to secure a lien to be distinctly expressed in the writ is obviously to give notice to other claimants. While the facts are not stated in the case, it was conceded at the argument that the three suits were brought to secure the liens upon permission of the court granted upon petitions in the proceeding in which the receiver was appointed and to which he was necessarily a party. Whether the court had or had not power by injunction to delay or embarrass these plaintiffs in the exercise of their statutory right, the receiver cannot be permitted to take advantage of the exercise of judicial power, possibly excessive, made in his behalf and presumably at his request. Having been a party to the proceeding in which Ferns asked leave to attach for the purpose of securing his lien, he cannot be heard to allege ignorance of the purpose of Ferns' attachment. Knowing Ferns' writ was so brought, he cannot be harmed by an amendment permitting such purpose to be now distinctly expressed in the writ, if such amendment is technically necessary.

The question of priority between lienors is reserved by the court as an important question of law. Generally, where different mechanics and materialmen are concerned in the construction of a building, and the building when completed is not of sufficient value to meet all the charges of its construction, the building is sold and the proceeds divided pro rata among those whose labor and property contributed to its construction, regardless of whether the claims are for labor or for materials, or of the times when the several claimants entered Into their contracts for what they did or furnished, or actually commenced the performance of their parts of the work, or of the furnishing of materials, or of the times when the various lien claims or notices were filed. 27 Cyc. 230, 231; 2 Jones on Liens (3d Ed.) § 1492. This is...