Pennsylvania Co. v. Mehaffey

• Decision Date: 22 January 1907
• Docket Number: 9614
• Parties: Pennsylvania Company v. Mehaffey.
• Court: Ohio Supreme Court

80 N.E. 177

75 Ohio St. 432

Pennsylvania Company v. Mehaffey.

No. 9614

Supreme Court of Ohio

January 22, 1907

Right of party furnishing material for construction of railroad - Such party has lien on railroad for payment, when - Definition of term "materials," used in railroad construction - Hay, grain, straw and feed, not materials when - Sections 3208 and 3211, Revised Statutes - Law of contracts - Interpretation of statutes.

1. Under Section 3208, Revised Statutes, which provides that "a person who * * * furnishes materials for or in the construction of any railroad, * * * in addition to his rights under the preceding section shall have a lien for the payment of the same upon such railroad," the term materials, as therein used, comprehends and includes such articles only as are furnished for and to be used in the construction of such railroad. Therefore, a person who furnishes hay, grain, straw and feed to a contractor or sub-contractor for the keep of teams employed by them in working on said railroad, is not within the purview and meaning of this section, furnishing materials.

2. Section 3211, Revised Statutes, while it, in terms, extends the provisions of above Section 3208, to such persons as furnish hay, grain, etc., on the order of a contractor or sub-contractor for their use or the use of persons employed by them or either of them while furnishing material or labor for or in the construction of such railroad, does not extend or enlarge the meaning of the word materials; nor does it impose upon the railroad company a personal liability for the articles thus furnished if no lien therefor be taken and perfected.

3. The Pennsylvania Company being engaged in the construction of certain side tracks, switches and other improvements on its railroad right of way at and near the village of Lafayette in Allen county, Ohio, caused to be posted at said village, and at other places in said county near the place where said work was being done, written notices that the Pennsylvania Company would "protect all claims for materials, labor and board." Held: that the claim of M. for hay, grain, straw and feed furnished by him to a contractor, for teams employed by the latter on said work, is not a claim for either material, labor or board within the language and meaning of said notice, and, therefore, is not a claim which the Pennsylvania Company, by the posting of said notices, thereby assumed, or obligated itself, to protect and pay.

On October 25, 1902, the defendant in error, R. Mehaffey, filed his petition against the Pennsylvania Company in the court of common pleas of Allen county, Ohio, charging in said petition, as and for his cause of action:

"That the defendant, Pennsylvania Company, is a corporation duly created under the law, and as such corporation, before and at the time of the facts hereinafter mentioned, to-wit, on the first day of January, 1900, was the owner and in possession of a certain railroad and was operating the same into and through Allen county, Ohio; that at the date herein above named, and for a long time thereafter, said defendant was constructing side tracks, switches, and making other improvements to and upon its said railroad right-of-way within the county aforesaid; that such work was under the management of Overstreet & Styles, assignees of Dorwin, Young & Co.; that there was necessarily a large number of men horses and mules employed by said Overstreet & Styles in and about the work herein alleged; that at the special instance and request of the said Overstreet & Styles, this plaintiff furnished, for the construction and improvements herein averred, material, hay, corn and other provisions for said men, horses and mules, aggregating four hundred and ninety-one dollars and thirty-one cents ($491.31) on account a copy of which is hereto annexed and herewith filed, marked 'Exhibit A.'"

(Which exhibit shows that the only articles furnished by plaintiff which are here involved, were hay, corn, straw and feed.)

"Plaintiff further avers that for several months prior to the twenty-third day of March, 1900, the said Overstreet & Styles had failed to make prompt payments of amounts due and owing by them to the persons who had performed labor and furnished materials, supplies and other provisions upon and to the work aforesaid, whereby the prosecution and completion of the said work was greatly hindered and delayed; that the aforementioned creditors of the said Overstreet & Styles, among whom was this plaintiff, were insisting upon the payment of their claims which were due and unpaid by the said Overstreet & Styles, and were threatening legal proceedings against them to compel the payment of the same; that thereupon and to prevent the institution of said legal proceedings and further hindrance to and delay of the work aforesaid, the Pennsylvania Company, there being then in its possession a portion of the contract price which it was to pay for said work, caused a written notice to be posted in the village of Lafayette, Allen county, Ohio, and other places within said county and state, a copy of which notice is hereto attached, herewith filed, and marked 'Exhibit B.'"

(Said Exhibit B is in the words and figures following:)

"PENNSYLVANIA LINES WEST OF PITTSBURG.

"Date, 3-23, 1900. Fort Wayne. Time, 5:20 P. M.

"To Agent Pennsylvania Company:

"Dear Sir--Post notice that Pennsylvania Company will protect all claims for material, labor and board.

"F. A. ZOLLARS."

"That said notice was an agreement on the part of the defendant herein to protect and pay the said creditors of the said Overstreet & Styles, including this plaintiff, whereby the defendant became liable to the plaintiff in the amount above stated.

"Plaintiff further avers that, relying upon the said written notice and in consideration thereof, he released and turned over to the said Overstreet & Styles, some twenty head of horses and mules then in his possession, which he would have retained until his claims were paid, only for the posting of the notices herein alleged; and that after the posting of the said notice, he continued to furnish for said work further materials, hay, corn and other provisions at the request of said Overstreet & Styles.

"Plaintiff further avers that after the posting of said written notice, and on or about the fifteenth day of April, 1900, the said defendant, by its authorized agent, in compliance with the said written notices posted as aforesaid, came to Lafayette and paid off a large number of said creditors' claims and promised within a short time thereafter to return and pay the remaining claims, including the claims of this plaintiff; and that the plaintiff's claim was similar to those of the said creditors which were paid by the defendant.

"Plaintiff further avers that relying upon the said written notice and request of the said defendant, and the representation of the agent paying said claims at Lafayette, and believing that said defendant would fully perform and carry out its said agreement, he did not institute any legal proceedings to secure the payment of his claim, and refrained from in any way hindering and obstruct- ing the speedy completion of the work aforesaid, and did not take any legal action by filing an affidavit with the recorder of Allen county, Ohio, to perfect his lien against the said defendant for materials, hay, corn, and other provisions furnished as herein stated, as the plaintiff could and would have done but for the posting of said written notices and representations of the said agent.

"Plaintiff further avers that the claim herein set forth is long since due; that he has requested of the defendant the payment thereof, and that the same remains wholly unpaid; and that the said plaintiff is justly entitled to the said sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), together with interest thereon from April 11, 1900.

"Wherefore, said plaintiff asks judgment in the sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), and interest and all other relief."

To this petition the Pennsylvania Company answered as follows:

"Now comes the defendant, Pennsylvania Company, and for answer to plaintiff's second amended petition says, it admits that it is a corporation duly incorporated under the laws of the state of Pennsylvania, and that on the first day of January, 1900, and for a long time prior to, and ever since, it has been operating the Pittsburg, Ft. Wayne & Chicago Railway as lessee, and that said railway passes through Allen county, Ohio, and that on the first day of January, 1900, it was constructing side tracks, switches, and making other improve- ments upon said railroad right-of-way within said county, and it denies each and every allegation in said amended petition contained not herein specifically admitted, and prays to be hence dismissed with its costs."

Upon the issues joined by the pleadings aforesaid, trial was had in the court of common pleas, which resulted in a verdict and judgment for the plaintiff Mehaffey, in the sum of $544.80. This judgment was subsequently affirmed by the circuit court. The Pennsylvania Company prosecutes error in this court, asking a reversal of said judgment of affirmance.

Mr. S. S. Wheeler and Mr. Allen Zollars, for plaintiff in error.

The alleged telegram was that the Pennsylvania Company "will protect all claims for material, labor and board." The petition and the evidence without any conflict show that the appellee's claim is for hay, corn, straw and feed, which he furnished to Overstreet & Styles, and for nothing else, except some items for rent, which he abandoned in the court below.

The telegram does not mention hay, corn, straw or feed. It is that the company ...