Titus v. Gunn
| Decision Date | 15 June 1903 |
| Citation | 55 A. 735,69 N.J.L. 410 |
| Parties | TITUS v. GUNN. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Gloucester County.
Action by William P. Titus against Prank Gunn. Judgment for plaintiff, and defendant brings error. Reversed.
Robert S. Clymer, for plaintiff in error.
A. H. Swackhamer, for defendant in error.
This was an action upon a mechanic's lien claim, brought against the defendant as builder and owner. The plaintiff prevailed in the court below, and a reversal of the judgment is now sought, on the ground of errors committed at the trial, evidenced by bills of exceptions.
The principal part of the plaintiff's claimarose under a contract in writing between the parties, providing for the construction at Mount Royal, in the county of Gloucester, of two dwelling houses by the plaintiff for the defendant, including the furnishing of all materials required for the work. The contract provided, as usual, for payment of the consideration price in installments as the work progressed, the final payment to be made "when each house is completely finished and delivered to the said Frank Gunn with a full release of liens." The only rational construction of this clause is that it was intended to protect the owner against liens and claims arising under the mechanic's lien law (P. L. 1898, p. 538). Turner v. Wells, 64 N. J. Law, 269, 45 Atl. 641; Id., 67 N. J. Law, 572, 52 Atl. 358. As the contract was not filed pursuant to section 2 of the act, the buildings were subject (sections 1, 16, 18, etc.) to the liens of laborers and materialmen to be filed within four months after performing the work or furnishing the materials. The contract work was finished not earlier than August 12, 1902, and this action was commenced on or before September 1st following. The release of liens was therefore essential for the protection of the defendant, and was a condition precedent of the plaintiff's right to recover, unless it affirmatively appeared that there existed no liens or claims to be released. Turner v. Wells, supra. No attempt was made by the plaintiff to show the nonexistence of such claims or liens; on the contrary, it was admitted that one or more of the materialmen remained unpaid. There was no tender of releases before suit brought. Releases were introduced in evidence, but a considerable number of them were dated, and presumably executed, after the commencement of the suit. It was admitted that one, at least, was signed on the day of the trial. The trial judge, against objection based on the nondelivery of releases before commencement of suit, directed the jury to render a verdict...
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McDonald v. Mulkey
...verdict for plaintiff; the notes were non-negotiable. Plaintiff did not have a right of action at the commencement of his suit. Titus v. Gunn, (N. J.) 55 A. 735; Hoyt Wilkinson, (Mass.) 10 Pick 31; Kirchner v. Bd. (Ia.) 118 N.W. 53; Fults v. Munro (N. Y.) 95 N.E. 25; R. R. Co. v. Maurel (Fl......
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Dempsey v. Langton
...Ill. 122, 56 N. E. 1123;Stonebraker v. Littleton, 119 Md. 173, 86 A. 150;Kennedy v. Hungerford, 110 Neb. 22, 192 N. W. 959; Titus v. Gunn, 69 N. J. Law 410, 55 A. 735;Boggess v. Bartlett, 72 W. Va. 377, 78 S. E. 241. In the instant case there was a dispute as to the time the claim became du......
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Zimmer v. Westinghouse Elec. Corp., A--65
...invoked is that a witness 'must be certain of the accuracy of notes used by him to refresh his recollection,' citing Titus v. Gunn, 69 N.J.L. 410, 55 A. 737 (E. & A.1903), and Hill v. Adams Express Co., 74 N.J.L. 338, 68 A. 94 But that rule has not been violated here. The witnesses testifie......
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Rein v. Travelers Ins. Co.
...47 A. 467), no claim maturing after suit brought can be included in the judgment. Felt v. Steigler, 69 N.J.L. 92, 54 A. 243; Titus v. Gunn, 69 N.J.L. 410, 55 A. 735; Holzapfel v. Hoboken Mfrs. R. Co., 92 N.J.L. 193, at page 195, 104 A. 209; Dolin v. Darnall, 115 N.J.L. 508, at page 510, 181......