Trustees of German Lutheran Evangelical St. Matthew's Congregation v. Heise

• Decision Date: 10 May 1876
• Parties: THE TRUSTEES of the GERMAN LUTHERAN EVANGELICAL ST. MATTHEW'S CONGREGATION OF BALTIMORE v. WILLIAM HEISE AND JOHN BRUNS, trading as HEISE & CO., and others. HEISE & CO. v. THE TRUSTEES OF THE GERMAN LUTHERAN CHURCH, &c. DAVID WILSON and EBEN HUNTING, trading as WILSON & HUNTING v. THE SAME. THE TRUSTEES OF THE GERMAN LUTHERAN CHURCH, &c. v. F. & H. WEHR.
• Court: Maryland Court of Appeals

44 Md. 453

THE TRUSTEES of the GERMAN LUTHERAN EVANGELICAL ST. MATTHEW'S CONGREGATION OF BALTIMORE v. WILLIAM HEISE AND JOHN BRUNS, trading as HEISE & CO., and others.

HEISE & CO. v. THE TRUSTEES OF THE GERMAN LUTHERAN CHURCH, &c.

DAVID WILSON and EBEN HUNTING, trading as WILSON & HUNTING v. THE SAME.

THE TRUSTEES OF THE GERMAN LUTHERAN CHURCH, &c. v. F. & H. WEHR.

Court of Appeals of Maryland

May 10, 1876

The cause was argued before BARTOL, C.J., BRENT, MILLER, ALVEY and ROBINSON, J.

Stewart Brown and Fred. W. Brune, for the Trustees of the Church.

By the terms of the contract with the builders, the Trustees of the Church were obliged to pay as the work progressed almost the entire contract price, (the last instalments not to be due until long after the completion of the building.) The complainants, F. & H. Wehr, knew the terms of the contract, and expressly incorporated them in their bond, thus formally declaring that there ""should be no liens." The two facts taken together that the bond was given, and that the complainants were to furnish the bricks, would seem to show that the contract was awarded or the terms thereof fixed, at the instance of the bondsmen. The complainants further knew that the Trustees relied on the bond, and after the execution thereof the Trustees had a right to feel satisfied that they might pay without fear of liens, so far at least as the complainants were concerned; yet, although the complainants in the delivery of the bricks were, by themselves or their agents, daily present at the building, from first to last and must have seen and known all the important changes, they suffered the Trustees to pay out nearly all their money without any notice, (till the last) that they would set up a claim. To allow the complainants' claim under these circumstances, to the injury of the Trustees, would be inequitable and unjust.

The assertion by the complainants of their lien claim, which must be based on a continuous contract with the builders for that building, and also on the continuing agency of the contractors under the original contract negatives any change in the original contract which will release the complainants as sureties on the bond; or in other words, any change of contract on which the complainants can rely to release them, must by destroying the identity of the building, and the relation of the parties equally affect and destroy the continuity of their own contract on which their large lien claim rests.

But no changes were made by the trustees and contractors, in the building, or as to the time of erection, but such as were recognized and provided for by the original contract; and therefore none of these changes operated to release the complainants from their undertaking that there should be no liens, and their obligation to indemnify the trustees against any lien claim.

By the joint and several bond, contemporaneous with the contract, (the provisions of which were incorporated therein,) the complainants F. & H. Wehr, agreed in advance not to claim any lien, or the contract amounted to a waiver for a valuable consideration, of any lien growing out of the default of the contractors, which they might otherwise set up against the Church, and, they are therefore now estopped from setting up such a claim in a Court of equity, to the injury of the Trustees.

The Trustees are not seeking in this case to recover against the complainants, damages for a breach of contract on the part of the contractors, but interpose the undertaking of the complainants in their bond and contract, as a defence to the lien claim, and whether such undertaking does or does not amount to a technical estoppel or release, it yet discloses a substantial equity which the Court will enforce to prevent the prosecution by the complainants of a claim inconsistent with their formal acts and declarations, (on the faith of which the Trustees have acted,) and with the said obligations by the complainants assumed.

The fact that there are other co-sureties, one being dead and the other insolvent, on this bond with the complainants, does not change the binding force of the equitable principle which requires a party seeking the aid of a Court of equity, to show on his part conscience, good faith and reasonable diligence.

The Court will consider also under this point, the fact that the complainants are partners, and that the bond so far as they were concerned was a partnership contract in consideration of the fact that they were to furnish the bricks for the Church.

Finally this defence being set up by the Trustees, not by way of set-off, technical or otherwise, and not counting on or looking to damages, liquidated or unliquidated on the bond, the form of the obligation assumed by the complainants, or in what acts or deeds contained, cannot be matters of importance, the only inquiry in that connection being what the obligation really is. And further, the obligation, whatever its form, operating by way of estoppel, a waiver, release or equitable discharge of liens, the question of parties either to the lien claim or the bond is not material.

Each and all the bondsmen say, in effect, "there shall be no liens, and we waive and release all liens we might acquire," and each and all, whether asserting a claim jointly or severally should be barred in a Court of equity. Phillips on Liens, p. 389, sec. 273; Grant vs. Strong, 18 Wall., 625; Sodini and Leiter vs. Winter, 32 Md., 135; Benjamin vs. Hillard, 23 How., 149; Doub vs. Barnes, 4 Gill, 1-19; Strawbridge vs. B. & O. R. R. Co., 14 Md., 363-6; Bowman vs Wathen, 1 How., 193; Frazier vs. Gelston, 35 Md., 314; Dilly vs. Barnard, 8 G. & J., 187; Comstock vs. Johnson, 46 N. Y., 615--621; Chapman vs. O'Brien, 34 N. Y., (Superior Court,) 524; Horn vs. Cole, 51 N. H., 287; Story's Equity, sec. 64, ( E.)

Samuel Snowden, for Heise & Co.

Where there is one employment for doing the work, or one order for the furnishing of materials, in the erection of a house, and the work is done or the materials are furnished continuously, the lienor is entitled to recover for all the work so done or materials so furnished and delivered, if any work is done or materials are furnished within six months before the filing of the lien claim. Miller vs. Barroll, 14 Md., 173; Reynolds vs. Stickney, (unreported opinion,) Liber G. E. and J. S. F., No. 1, folio 496.

No special contract in terms is necessary to be proved, but a general request to furnish the material or to do the work is sufficient; and if the work is done or the materials are furnished in pursuance of such request, although actually delivered at different times, the claimant is entitled to recover. Phillips on Mech. Liens, sec. 114, and authorities there cited. Pennock vs. Horner, 5 Rawle, 291.

The fact that the items are furnished as the buildings progress is prima facie evidence of a continuous contract, and throws upon the defendant the burden of showing that there was not such contract. Reynolds vs. Stickney, (unreported opinion,) Liber G. E., and J. S. F., No. 1, folio 496.

The testimony conclusively establishes the existence of one order, or agreement for the furnishing by Heise & Co. of the lumber for the Church building; and the materials having been delivered under this order, it was one continuous dealing, and all the items are bound together by this first order, so that the last item is as much a part of the contract as the first, and the lien claim dates from the last item and brings in all the other items in the account as a lien upon the property; any other rule would render the lien of the mechanic a sham and a delusion. Phillips on Mechanics' Liens, sec. 230.

The lumber charged in the lien claim having been delivered to Siegman & Jones under one general order therefor, and having been delivered continuously during the progress of the building, and notice having been given to the owners within sixty days from the delivery of the last material, the appellees (Heise & Co.) are entitled to a lien for all the lumber furnished by them to Siegman & Jones, for the erection of the Church building.

The rule is well settled that where a payment is made, the debtor has the right in the first place to direct its application to the payment of any claim he may see proper, but if he fails to do so, the creditor may make the application, and if neither applies it, the law will make the application. The application need not be made by the creditor at the time of the payment, but may be made at any time before trial, and may become fixed by verbal declaration or by the terms of the receipt given, or by rendering an account, or by bringing suit grounded on such specific appropriation, or by any other act manifesting an intent or inducing a belief that such application has been made. 1 Am. Leading Cases, (5 th Ed.) t. p., 34; Allen vs. Culver, 3 Denio, 284, 290; Allen vs. Kimball, 23 Pick., 473, 475. And such creditor may apply it on bond or open account, secured or unsecured debts. Mitchell vs. Dall, 4 G. &. J., 361, 372.

In this case the debtor did not at any time direct any of the moneys paid by him to be applied to the account for lumber sold for the Church. It was therefore the right of the appellees, (H. & Co.,) to apply any moneys paid, to the payment of any debt which Siegman & Jones owed them. At the time of the payments they credited them on the account generally, but did not communicate such credits to Siegman & Jones, and such entries being in their own private books, did not indicate such an election so to appropriate the payments, but merely an idea of so appropriating them. Simson vs. Ingham, 2 Barn & Cress., 65. When therefore they made out their account, for the purpose of filing their lien claim against the...