Plaintiff v. Petitioner
| Decision Date | 07 December 1898 |
| Citation | 45 W.Va. 490 |
| Court | West Virginia Supreme Court |
| Parties | Cushwa et al. v. Improvement L. & B. Association, et al. |
(Dent, Judge, dissenting)
1. Mechanic's Lien Negotiable Notes.
Where a material man, workman, laborer, mechanic, or other person, performs any labor or furnishes any material or machinery for constructing any house, mill, manufactory, or other building or structure, by virtue of a. contract with the owner or his authorized agent, he shall have a lien, to secure the payment of the same, upon such house or structure, and upon the interest of the owner of the lot of land on which the same may stand; and such lien will not be affected by the party claiming the same accepting negotiable notes for the amount of his account, which notes are not made payable after the time fixed for bringing a suit to enforce the mechanic's lien. (p. 496).
2. Receipt Evidence of Payment Oral Evidence.
A receipt, so far as it is a mere admission, is not conclusive evidence of the payment therein acknowledged, but the party signing it may invalidate it by oral evidence of fraud or mistake; for the document amounts only to prima facie proof, and is capable of being explained. (p. 497).
3. Notes Payment of Debt.
A note will not be regarded as an absolute extinguishment or payment of a precedent note or pre-existing debt, unless it be so expressly agreed, whether the note received was that of one bound or a stranger. (p. 498).
4. Mechanic's Lien Notes Acceptance of Notes Surrender of Notes.
The acceptance of the note of a debtor, payable after the time granted by the statute for filing a mechanic's lien, and maturing before the expiration of the time limited for bringing suit, will not bar a suit and recovery upon the lien, if the notes are produced to be surrendered at the trial. (p. 499).
5. Mechanic's Lien Deed of Trust Priority of Lien.
Where work has been commenced and material furnished under a contract, for constructing buildings, with the owner of the land on which buildings are to be erected, the mechanic's lien attaches from the time the performance of the work and furnishing materials begin, and such mechanic's lien is entitled to priority over a deed of trust subsequently executed on the same property. (p. 501).
Appeal from Circuit Court, Berkeley County.
Faulkner & Walker, for appellants.
W. H. Travers, M. T. Ingles, A. C. Nadenbousch, and U. S. G. PitzER, for appellees.
On the 10th day of February, 1897, the Improvement, Loan and Building Association of Martinsburg, a corporation under the laws of the State of West Virginia, A. C. Nadenbousch, trustee, and Harvey T. Cushwa and Harry S. Cushwa, partners trading under the firm name of H. T. Cushwa & Bro., appeared in open court in the circuit court of Berkeley County, and filed their bill in chancery against the Auburn Wagon Company, a corporation, U. S. G. Pitzer, trustee, and others, in which, among other thing's, they alleged that on February, 18, 1896, the defendant the Auburn Wagon Company, a corporation under the laws of Pennsylvania, and a citizen of said state, was the owner in fee of a lot of ground in the town of Martinsburg, Berkeley County, W. Va., containing two acres, three roods, and ten poles, and on that date executed a deed of trust to said Nadenbousch, trustee, on said lot, together with all improvements then on same, or thereafter to be put thereon, etc., a copy of which trust deed was exhibited with said bill, from which it appears that said deed was made for the purpose of securing the payment of an indebtedness of forty thousand dollars with interest, to said Improvement, Loan and Building Association, owed by said Auburn Wagon Company, which was payable in installments as therein set forth, and upon terms and conditions therein set forth. On February 13, 1897, said building and loan association gave notice to said Nadenbousch, trustee, to proceed to execute said deed of trust by selling the property thereby conveyed in the terms re quired by said deed. It was further, alleged that on October 13, 1896, said firm of II. T. Cushwa & Bro.. filed their mechanic's lien in the office of the clerk of the county court of Berkeley, wherein the real estate owned by said Auburn Wagon Company, above described, is situated; that is to say, they filed a just and true account of the amount due them, after allowing all credits, together with a description of the property owned by said wagon company, and intended to be covered by the lien claimed by said H. T. Cushwa & Bro., sufficiently accurate for identication, duly sworn to by said Harry S. Cushwa, an office copy of which was exhibited with plaintiffs' bill, as Exhibit B. The bill also alleged that there was due to said H. T. Cushwa & Bro. on account of said lien the sum of three thousand eight hundred and eighty-eight dollars and forty cents, with interest; that the same was for work and labor performed and materials furnished in constructing the buildings of the plant of the said Auburn Wagon Company on lot aforesaid; that said work was performed and materials furnished partly under a contract in writing made by said Cushwa & Bro. with said wagon company; that said work and labor were performed and said materials furnished between the 24th of February, 1896 and 1st of September, same year; and that no part of the amount due them as shown by said Exhibit B has been paid, but the same is wholly due, with interest thereon.It was further alleged that on December 3, 1896, the Auburn Wagon Company executed a deed to U. S, G. Pitzer, trustee for the Morrison & Westfall Company of said real estate, with other property therein described, to secure to said Morrison & Westfall Company the payment of certain drafts, notes and indebtedness, a copy of which trust deed was also exhibited as part of the bill. The plaintiffs in their bill also described several judgments which had been obtained by other parties, who were made defendants, against said Auburn Wagon Company, before a justice of the peace of Berkeley County. Plaintiffs also alleged that said wagon company was wholly insolvent; that its liabilities exceeded one hundred thousand dollars; that the assets consisted almost exclusively of the real estate above mentioned, with the improvements thereon, and machines and tools used in the business of manufacturing wagons, the total value of which was not more than enough, if properly administered, to pay the indebtedness due plaintiff, said Improvement, Loan and Building Association; that said wagon company has in process of manufacture, and almost ready for shipment, a large number of wagons, towit: eight hundred, but which cannot be completed and placed on the market, for want of additional material to complete the same, which, owing to its crippled financial condition, it was unable to secure; and the plaintiffs prayed the appointment of a receiver to take charge of the property and business of said company, and operate the same, until such time as a sale can be properly made thereof, or until the court should otherwise order; that the creditors of the company might be convened by a reference of the cause to a commissioner, and that the repective amounts and priorities of their liens and debts might be ascertained, and the assets of the company properly distributed among them. The defendant wagon company answered the plaintiffs' bill, admitting the execution of the deed of trust to A. C. Nadenbousch, trustee, mentioned in the bill, and alleged that previous to the making of said conveyance the building and loan association had entered into a contract with it, bearing date December 10, 1895, which was not sealed and delivered until the 28th day of January, 1896, but possession of the property to said wagon company had been delivered some time prior to January 13, 1896, whereby said building and loan association agreed to loan said company forty thousand dollars, to be paid att he time and in the manner therein set. forth, and the said wagon company, among other things, thereby agreed that it would make and acknowledge for record a proper deed of trust upon said lot of ground, and upon all its buildings, plant, and machinery, to secure the party of the first part the loan aforesaid, and the performance of, all and singular, the covenants and agreements therein contained, and keep said property insured in some solvent company, which agreement was signed by H. T. Cushwa, president of the Improvement, Loan and Building Association, and F. C. Ward, president of the Auburn Wagon Company, acknowledged by H. T. Cushwa, president, on January 17, 1896, and by F. C. Ward, president, on January 28, 1896, and was admitted to record on March 13, 1896. The wagon company further answering, said that it had a contract with H. T. Cushwa & Bro. by which certain buildings were erected and materials therefor furnished by said Cushwa & Bro., and that on August 15, 1896, it had a settlement, through its president, F. C. Ward, with said Cushwa & Bro., and then gave to them three negotiable promissory notes of the said wagon company, each for the sum of one thousand one hundred and sixty dollars and thirty-one cents, making the aggregate, three thousand four hundred and eighty dollars and ninety-three cents, which notes were given by respondent as payment and satisfaction, and received by H. T. Cushwa & Bro. in payment in full, of the balance owing to said firm under that contract, and the extra work done for it by them, except a small part thereof, to-wit: the execution of what was called the "Mailing Office," which was to cost four hundred and seven dollars and forty-seven cents,...
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