Naidech v. Hempfling

• Decision Date: 19 December 1941
• Docket Number: No. 405.,405.
• Citation: 24 A.2d 524,127 N.J.L. 430
• Parties: NAIDECH et al. v. HEMPFLING et ux.
• Court: New Jersey Supreme Court

24 A.2d 524

127 N.J.L. 430

NAIDECH et al.

v. HEMPFLING et ux.

No. 405.

Supreme Court of New Jersey.

Dec. 19, 1941.

Syllabus by the Court.

1. The plaintiffs filed a lien claim for materials furnished to a building, partly by lump-sum contract and partly on open account. No "notice of intention" as provided by R.S. 2:60-112, N.J.S.A. 2:60-112, was filed before the making of a contract, and not until after a portion of the materials had already been furnished. Certain payments were made, leaving a balance at the end of about $200, for which a lien claim was filed and suit begun. Held, that in the absence of any application by the debtor of the payments to any specific portion of the claim, they would be applied to the earlier items of the account, particularly as those items were, in part at least, without the protection afforded by filing a "notice of intention."

2. The use of the expression "and/or" in connection with pleadings in a court of law disapproved.

Appeal from District Court.

Action under the mechanics' lien statute by Augusta Naidech and others, partners, etc., against George Hempfling and wife, impleaded, etc., for materials furnished for a building. From a judgment dismissing the action as against George Hempfling and wife, the plaintiffs appeal.

Judgment reversed, and cause remanded for trial.

October term, 1941, before PARKER, DONGES, and COLIE, JJ.

Joseph Grossman, of Passaic, for appellants.

Charles W. Weleck, of Hackensack, for respondents.

PARKER, Justice.

The action is under the mechanics' lien statute, N.J.S.A. 2:60-105 et seq., for materials furnished for a building. There was a motion to "strike out the complaint" as showing on its face that plaintiffs had received payment in full for all materials supplied after the "notice of intention" required by 2:60-112 of the act had been filed; and the district court judge "dismissed the action" as against the present respondents, charged in the complaint as "owners."

The case is submitted on briefs; and the only question to be decided at this time relates to the application of payments. The bill of particulars annexed to the complaint (so styled in the act, 2:60—139, though the action was in a district court) consists of a large number of minor items of material, beginning on September 30, 1940, together with two "contracts", one for $970 not dated, but preceding the item of September 30, and called "lumber contract", and the other, called "garage contract" accompanying minor items of November 10, 1940. The last item is dated December 9. There were payments on account of $400 on October 21, $214.35 on November 19, $20.33 on November 22, $293.65 on December 23, $300 on January 30, 1941, and a credit of $5.55 materials returned, not dated, but following the item of $300. The debit balance claimed was $200.75, for which amount lien was claimed and judgment asked.

The difficulty arises from the fact that the "notice of intention" was not filed until October 10, at which time $34.30 of material had been furnished, in addition to the contract price of $970 charged at the outset. Just what part, if any, of the material covered by the $970 had been supplied is a question not answered by anything in the case; nor need we consider the question, not suggested in either brief, whether a lien will lie for the amount of a lumpsum contract irrespective of whether there had been any performance in whole or part; for the rules as to application of payments are perfectly well settled. Those here applicable are as follows: 1. A debtor owing several debts to a creditor is entitled to direct application of any payment to whichever debt he...