Great Southern Fireproof Hotel Co. v. Jones

• Decision Date: 03 June 1902
• Docket Number: 1,036.,1,032,1,031,1,034
• Citation: 116 F. 793
• Parties: GREAT SOUTHERN FIREPROOF HOTEL CO. v. JONES et al. SAME v. AMERICAN BLOWER CO. SAME v. AKRON HYDRAULIC PRESS BRICK CO. SAME v. GRAND RAPIDS SCHOOL FURNITURE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

116 F. 793

GREAT SOUTHERN FIREPROOF HOTEL CO. v. JONES et al. SAME v. AMERICAN BLOWER CO. SAME v. AKRON HYDRAULIC PRESS BRICK CO. SAME v. GRAND RAPIDS SCHOOL FURNITURE CO.

Nos. 1,031, 1,032, 1,034, 1,036.

United States Court of Appeals, Sixth Circuit.

June 3, 1902

J. E Sater and D. F. Pugh, for appellant.

T. P Linn, for appellees.

These four separate appeals involve subcontractors' liens asserted under a statute of Ohio against the property of the Great Southern Fireproof Hotel Company at Columbus, Ohio. The material facts common to all the cases are these: By a contract dated October 10, 1894, one William J. McClain became the principal contractor for the complete construction of a large fireproof hotel and opera house for the Great Southern Fireproof Hotel Company, a corporation of the state of Ohio. For the entire materials and work the hotel company agreed to pay the sum of $345,000. The complainants in the suits below, for convenience heard on appeal together, are all subcontractors who did part of the work or furnished part of the materials used in the construction of said building under contracts with the principal contractor, and who now assert liens on the said structure by virtue of the provisions of the law then in force, being an act passed April 13, 1894, and carried into Annotated Ohio Statutes as sections 3184, 3185, and 3185a. The defenses were that the complainants had not complied with the terms and conditions of the law giving the lien claimed, and that, if they had done so, so much of the act of April 13, 1894, as gives a lien upon the property of an owner for materials supplied or labor performed at the instance of a principal contractor is void, as in conflict with the organic law of Ohio. The court below found against both these defenses, and granted the prayers of the several bills.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

1. The hotel company objects to the claims of Jones & Laughlins Limited, because they did not, in their respective claims for liens, file an 'itemized statement or account,' as required by section 3185, Bates' Ann. St. To secure the lien provided by the preceding section, section 3185 in substance provides that the person claiming the lien 'shall, within four months of the time from performing such labor, or furnishing such machinery or material file with the recorder of the county,' etc., 'an affidavit containing an itemized statement of the amount and value of such labor, machinery, or material and a description of any promissory note or notes given for such labor, machinery or material, or any part thereof, with all credits, and offsets thereon, a copy of the contract, if it is in writing, a statement of the amount and times of payment to be made thereunder and a description of the land * * * on which the house * * * or * * * structures may stand; * * * and the same shall be recorded in a separate book to be kept therefor, and shall operate as a lien from the date of the first item,' etc. (The italics are ours.) The 'itemized statement or account' made a part of the recorded affidavit filed consisted of some 64 items, credited with $31,886.72, leaving a balance due of $11,420.02. The form of this account is as follows:

Pittsburgh, Pa., March 21, 1896.

W. J. McClain, Columbus, Ohio, Bought of Jones & Laughlins, Limited, 1895.

April 17. Merchandise . . . $545.10

April 22. Merchandise . . . 501.21

Sixty-two other items of 'merchandise,' under as many different dates, then follow. The objection is to the indefiniteness of this statement.

'Merchandise,' say the appellants, is a trade term covering every form of movable customarily bought and sold for gain, and from an account so stated it cannot be told what kind of merchandise is claimed to be 'materials' used in or about the structure erected for the hotel company. 'For all that can be known from this itemized statement,' say counsel 'the Jones & Laughlins Company may have sold and delivered to McClain, the principal contractor, canary birds or fiddle strings, for which they now claim a lien upon appellants' property as materials furnished for and on account of the structure erected for it. ' This criticism is based upon the contention that this statement cannot be read in connection with the affidavit filed by Jones & Laughlins, of which the statement is a part. The statute requires, as a foundation for the lien, the filing and recording of an affidavit 'containing an itemized statement of the amount and value' of the materials furnished is in writing,' etc. Thus the 'contract' and the 'itemized statement' are made parts of the lien affidavit. Looking to the Jones & Laughlins affidavit, we find that a copy of the contract with W. J. McClain, who is averred to have been the principal contractor engaged in the erection of the appellants' hotel and opera house, is set out in full, and made part of the affidavit, and that it is averred that 'the annexed statement, marked 'A,' which is made part of this affidavit, is a true and correct itemized statement of the amount and value of the labor performed and materials furnished by said Jones & Laughlins, Limited, to, for, in, and about the construction, erection, and completion of a certain building,' etc. 'Said labor and materials so furnished to, in, for, and about the construction, erection, and completion of said building were furnished at the times in said annexed statement mentioned under and by virtue of a contract in writing entered into by and between said Jones & Laughlins and one W. J. McClain, who was at the times herein mentioned the principal contractor,' etc. Now, if we read this itemized statement, as it was intended to be read, as a part of the recorded affidavit, and in connection with the contract made a part thereof and fully set out, and in connection also with the other facts averred in said affidavit, we shall at once discover that Jones & Laughlins, Limited, had furnished the items of 'merchandise' mentioned under a contract by which they were to furnish 900 tons of structural steel needed for the Great Southern Hotel Company, Columbus, Ohio, 'fitted ready for erection in accordance with the revised plans and specifications, for the sum of $32,580.00, delivered f.o.b. cars at Columbus'; and that, if more was needed, it should be furnished 'at the same rate of $1.81 per hundred, or, if less amount is required than the 900 tons, a deduction to be allowed at the same rate.' We shall see also that this affidavit avers that the statement 'is a true and correct itemized statement of the amount and value of the labor performed and materials furnished in pursuance of said contract.' To refuse an interpretation of this 'itemized statement' in the light of the other parts of the same affidavit would be to apply a different rule of construction to such a claim for lien from that applicable to every other kind of written document. The object in requiring the affidavit to include a copy of the written contract and an itemized statement of the labor performed is to give notice to all concerned of the claim and the basis upon which it stands. Manifestly, the itemized statement may be supplemented by any more definite facts which appear to explain it, and which constitute a part of the same recorded affidavit. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769; Knabbs' Appeal, 10 Pa. 186, 51 Am.Dec. 472; Banks v. Berg, 82 Iowa, 350, 48 N.W. 90; Bethell v. Lumber Co., 39 Kan. 230, 17 P. 813. Construed in connection with the affidavit of which it is a part, it is plain that 'merchandise' stands for 'structural steel,' and that the item under date of April 17, 1895, is for an amount of structural steel delivered that day at $1.81 per hundred, $545.10. If it is desired to know the number of pounds that day delivered, the calculation is easily made. That is certain which can be made certain. The case of Kern v. Pfaff, 44 Mo.App. 29, is not applicable, because no sufficient facts appeared there to enable one to see, without going beyond the affidavit, what the price per roll was, or the number of rolls of paper used. The objection was untenable, and was properly overruled.

2. The objection to the 'itemized statement' filed by the American Blower Company as part of its affidavit is even more untenable. The contract made a part of the affidavit, as required by the Ohio statute, shows an entire contract for a heating and ventilating plant at the price of $3,989. The account filed as part of the affidavit is in these words 'Sept. 19. To contract, $3,989.00.' Then follow items not included in the contract, and not objected to. When the job is an entire one for an entire price, an itemized...