New England Engineering Co. v. Oakwood St. Ry. Co.

• Citation: 75 F. 162
• Parties: NEW ENGLAND ENGINEERING CO. v. OAKWOOD ST. RY. CO.
• Decision Date: 13 July 1896
• Court: U.S. District Court — Southern District of Ohio

75 F. 162

NEW ENGLAND ENGINEERING CO. v. OAKWOOD ST. RY. CO.

United States Circuit Court, S.D. Ohio, Western Division.

July 13, 1896

The bill is filed for the purpose of foreclosing a mechanic's lien for the balance due on a contract for the furnishing of steam engines as part of the plant of an electric street-railway company in the city of Dayton, Ohio. By the contract, dated December 21, 1894, the New England Engineering Company agreed to furnish to the street-railway company a complete steam-power plant, in running order, at the railway station known as the present car barn of the street-railway company, in the city of Dayton, all for the sum of $,8,000. The contract describes the engines and particular machinery and boilers, piping, pumps, foundations etc. The terms of payment were as follows: 'When machinery is delivered at site, you are to pay us $10,000 cash; thirty days after plant is started, $10,000 cash; and one note for ninety days, $3,000; one note for six months $3,000; one note for nine months, $2,000,-- without interest and indorsed by the president of the street-railway company Mr. Charles B. Clegg. ' As to the time of completion, the engineering company agreed as follows: 'We will complete the above plant in running order on or before March 15th, 1895, barring unavoidable accidents, and providing the generators are placed on foundations ready for the reception of our transmission work on or before March 15, 1895. ' The bill avers that the complainant proceeded to do the work provided in the contract and to build and furnish the machinery, but was prevented by unavoidable accident from completing the work at the time provided in the contract, and was unable to complete the same before the 3d day of August, 1895; that owing to the unavoidable accidents and obstructions due to the cold weather, and to the fact that the defendant company willfully obstructed complainant from carrying on the work provided in the contract, the delivery of the machinery at the site of the power house was not completed until the 9th day of April, 1895; that upon that day the street-railway company paid to complainant the sum of $10,000, in accordance with the terms of the contract; that on the 29th day of June, the plant was started in operation, under the direction of complainant, and that, at the request of the street-railway company, complainant thereafter continued in charge of the plant, operating the same, until on or about the 1st day of August, at which time complainant turned over and delivered the same to the street-railway company; that there became due and payable the sum of $10,000, cash, on the 29th day of July, 1895, and that complainant, upon the same day, became entitled to receive from the Oakwood Street-Railway Company the three promissory notes in the contract described, but that the defendant then refused, and still refuses, to pay the complainant either the sum of $10,000, or to deliver the promissory notes; that complainant, in addition to the work done under the contract, did some extra work, and furnished some extra materials, at the request of defendant, amounting in all to $2,100; that this extra work and these extra materials were furnished during the months of June and July, the last having been delivered upon the 29th day of July; that on the 13th day of August, 1895, and within thirty days after the work was performed and the materials furnished, the complainant filed with the recorder of Montgomery county, Ohio, within which the work was done and materials furnished, for the purpose of securing its claim against the Oakwood Street-Railway company; and that the same is now on record in the recorder's office in Montgomery county, and a copy thereof is attached to the bill, and made part thereof. Complainant avers that, by virtue of this recording, it has obtained a lien, under the statutes of Ohio, under the car barn, power house, all the machinery therein, also upon the land upon which the buildings are situate, which is described particularly in the bill, and also upon the entire line and tracks of the Ohio Street-Railway Company, together with its rolling stock, of whatever sort. The complainant prays an injunction against the removal of the machinery, put in by it, from the power house, which the defendant threatens, and also prays that the property upon which the claim is a lien may be sold under the decree of the court, and, out of the money arising therefrom, that the entire debt due the complainant, amounting to $20,200, with interest from July 29, 1895, may be paid over to the complainant, for the satisfaction of its lien, and, in case the property should not sell for a sufficient sum to satisfy the lien, that a decree may be made in favor of complainant for the balance unpaid, and execution awarded therefor. The defendant street-railway company appears, and files a demurrer to the bill, and, for cause of demurrer, shows--First, the that bill does not contain any matter of equity whereon this court can grant any decree; second, that, at the time of the filing of the sworn and itemized statement of the amount of work done and material furnished, there was not, and there is not now, any statute authorizing any such statement to be filed with the county recorder for the purpose of obtaining a lien against any property of the street-railway company; third, because the sworn and itemized statement furnished as alleged was not filed with the recorder within 30 days after the work was performed or materials furnished.

Harmon, Colston, Goldsmith & Hoadly, for complainant.

Paxton, Warrington & Boulet and McMahon & McMahon, for respondent.

TAFT Circuit Judge (after stating the facts as above).

The demurrer was intended to present three points: First. That the statute upon which complainant relies does not apply to a street-railway company. Second. If it does apply, that the statute itself is unconstitutional and void. Third. That, even if the statute is valid and applies to street-railway companies, the recording of the lien was not perfected within the 30 days after the rendering of the work and the furnishing of the materials, as required by the terms of the statute. Of these in their order.

1. The statute relied on is an act entitled 'An act to fix responsibility and to protect labor and the rights of contractors and sub-contractors on all public works or work done for companies, corporations, contracting companies or individuals. ' It was passed March 20, 1889, and is to be found in 86 Ohio Laws, p. 120. The first section of the act provides as follows:

'Sec. 1. Be it enacted by the general assembly of the state of Ohio, that any person who shall have performed common or mechanical labor upon, or furnished supplies to any railroad, turnpike, plank road, canal or on any public structure being erected, or on any abutment, pier, culvert or foundation for same, or for any side track, embankment, excavation or any public work, protection, ballasting, delivering, or placing ties, or track-laying, whether the labor is performed for, or the supplies or material is furnished to any company, corporation, contractor, or sub-contractor, construction company or individual, shall have a first, immediate and absolute lien on the whole of the property on which said work is done, and to which said supplies have been contributed, and shall hold the railroad, canal, turnpike, plank road or structure to the creation or construction of which the said labor or supplies has been contributed or so much thereof as may have been in whole or in part created by said labor or supplies, to the exclusion of any railroad, canal, turnpike, plank road, public work or structure, as to operation, occupation or use, until the claim for such labor or supplies is properly adjusted and paid in full.'

The contention is that the term 'railroad,' as used in this section, refers to commercial or traffic railroads, as distinguished from 'street railways.' It is said that in the statutes of Ohio the usus loquendi requires that the term 'railroad' when used without qualification, should be held to mean commercial or traffic railroads, and not those which are used for passenger purposes upon the streets of cities and villages.

Part 2, tit. 2, of the Statutes of Ohio, is devoted to corporations. Chapter 2 of that title is devoted to railroad companies. By section 3309a, which was passed subsequent to the revision of the statutes on the 20th of March, 1884 (81 Ohio Laws, p. 57) there was a proviso as follows:

'That nothing in this section or in the sections of the Revised Statutes relating to railroad companies prior to section thirty=four hundred thirty-seven, other than in sections thirty-two hundred and eighty-seven, thirty-two hundred and eighty-eight, and thirty-two hundred and eighty-nine shall be construed as affecting street railroads.'

There is under the title 'Railroad Companies' a subhead 'Street Railways.' It may be that in sections properly within the chapter on railroad companies, and in amendments to those sections, there is a distinction made between railroad companies and street-railroad companies, and that, where the term 'railroad' is used, the presumption is that it means a traffic railroad. We do not, however have to decide this question.

The act here in controversy is not an amendment to any act in relation to railroad companies which would come properly within the purview of chapter 2, on railroad companies, in the Revised Statutes. This act of 1889 is properly inserted as an...