Watson v. Brunner

• Decision Date: 18 November 1920
• Citation: 105 S.E. 97
• Parties: WATSON. v. BRUNNER.
• Court: Virginia Supreme Court

105 S.E. 97

WATSON.

v.BRUNNER.

Supreme Court of Appeals of Virginia.

Nov. 18, 1920.

Burks, J., dissenting.

Appeal from Law and Chancery Court of City of Roanoke.

Suit by W. C. Brunner against Z. T. Watson and another. From a decree in favor of the plaintiff, the named defendant appeals. Affirmed.

C. S. McNulty and Morris L. Masinter, both of Roanoke, for appellant.

Jas. A. Bear, of Roanoke, for appellee.

SAUNDERS, J. On March 1, 1917, G. W. Austin contracted to furnish all the labor and material and erect a dwelling for Z. T. Watson in the city of Roanoke, at the price of $3,125, of which $400 was to be paid when the foundation was in, $900 when the roof was on, $1,000 when the plastering was completed, and the balance when the house was finished. Austin contracted with Brunner to furnish a large part of the lumber and materials to be used in the construction of the house. On June 29, 1917, Austin gave to Brunner the following written order:

"Mr. Z. T. Watson: Please pay to W. C. Brunner $750.00 on materials furnished for your residence, and charge to my account. [Signed] G. W. Austin."

About this time Brunner also took steps to fix a personal liability upon Watson for the materials furnished for his house. The house was completed, and Watson entered into possession thereof on or about August 3, 1917. On October 3, 1917, Brunner docketed a mechanic's lien against the house, and on October 6, 1917, brought the present suit. The bill set forth the steps which had been taken by Brunner to fix a personal liability upon Watson, and also the docketing of his mechanic's lien. The bill also set forth the fact that Watson had executed a deed of trust on the property to C. S. McNulty, trustee, to secure to Kate L. Murray a debt of $3,000, and claimed that the complainant's debt was superior to the debt secured to Mrs. Murray. After setting forth the facts, the bill alleges:

"Your orator is advised, therefore, that he has a personal liability claim against the said Z. T. Watson, owner of the building aforesaid, which is enforceable in a court of equity, and in addition thereto he has an alternative remedy of enforcing his mechanic's lien against said property."

The bill makes no reference to the order which Austin had given to Brunner for $750, and the prayer of the bill is that Brunner may be decreed to have a personal liability claim against Watson, and, in the event he is not entitled to such decree, that he be decreed to have a mechanic's lien against the building, and be given a personal decree against Austin, the contractor, and Watson, the owner, for the amount of his debt, and that the property be subjected to the payment thereof.

The defendants severally demurred to and answered the bill, denying any liability for the debt, or any lien of any kind for the claim. The case was referred to a commissioner on March 8, 1918, to report upon the claims of Brunner, and whether or not he had a lien for the amount thereof, and also to report any other matter deemed pertinent by him, or specially requested by any of the parties. The hearing of the case before the commissioner was greatly delayed in order to suit the convenience of counsel. Deposi tions were taken at length by the parties, and directed wholly to the question of whether there was a personal liability on Watson for the debt, or whether Brunner had a mechanic's lien for the same, and counsel for Brunner, during the course of the examination, objected to going into the general account between Brunner and Austin, on the ground that Austin "must confine himself to matters and things pertinent to the enforcement of the lien set out in the bill." The commissioner finally made his report on March 14, 1919, in which he states that there was quite a volume of depositions taken of various witnesses, a number of exhibits filed, that counsel on both sides submitted briefs in writing setting forth their views, and that after consideration of the whole he was of opinion that there was no personal liability on Watson for the debt, and that Brunner did not have any mechanic's lien. Under the general head of reporting any other matter deemed pertinent by him, or specially requested by any party to the litigation, the commissioner made the following report, at the special instance of Jas. A. Bear, attorney for the plaintiff, Brunner:

" * * * That the defendant Watson had notice of the order from the defendant Austin to the complainant, W. C. Brunner, dated June 29, 1917, for the sum of $750, by verbal notice from the said Brunner to the said Watson on June 20, 1917. This notice, in the opinion of your commissioner, is not such a notice as is required by section 2479 of the Code to create a personal liability against the defendant Z. T. Watson in favor of the complainant, Brunner. It may be an assignment of the defendant Austin, issued to the plaintiff, Brunner, of this amount; but of this your commissioner does not undertake to say, as in his opinion it is not a question which he can deal with in this report, and is a matter that would have to be settled in other litigation between the parties."

Brunner excepted to this report, on the ground that the commissioner had not found in his favor as to the personal liability of Watson, and also because he had not found that complainant was entitled to a mechanic's lien.

On the next day after the filing of this report, to wit, March 15, 1919, Brunner tendered his petition to the court, which he asked to be treated as an amended and supplemental bill in the cause, and was permitted to file it over the objection of the defendants. Thereupon Watson demurred to and answered the petition, and on May 27, 1919, the court entered an order overruling (1) the objections to the filing of the petition; (2) the exceptions which had been filed by Brunner to the commissioner's report; and (3) the demurrer of Watson to the petition—and, treating same as an amended and supplemental bill, referred the cause to the commissioner to ascertain, among other things, the circumstances under which the order of June 29, 1917, was given, the amounts, if any, that were then or afterwards to become due from Watson to Austin, and whether, in his opinion, said order was given under such facts and circumstances as to make it an equitable assignment of any certain fund in the hands of the drawee, Z. T. Watson. The case then went back to the commissioner, further depositions were taken on the subject of the assignment, and on July 12, 1919, the commissioner filed his report, in which he reviews the testimony and comes to the conclusion that Brunner held an equitable assignment of $750 which was due by Watson to Austin, and that he was entitled to enforce this assignment against Watson. No exceptions were filed to this report, and when the case was heard the court entered a personal decree against Watson for $750, with interest. From that decree this appeal was taken.

Two errors are assigned to this decree. The first is to the action of the court in allowing the petition to be filed as an amended and supplemental bill in the cause, and the second is to the action of the commissioner in finding that Brunner was entitled to an equitable assignment of $750. It may be stated in this connection that the evidence on the subject of the liability of Watson to Austin at the date of said order is in serious conflict; both Austin and Watson testifying that at that time Watson owed Austin nothing, and did not thereafter become indebted to him, while the testimony of Brunner is exactly to the contrary. The commissioner found that Watson was indebted to Austin in at least the amount of $750 at that time, giving in detail his reasons for that conclusion, which is based upon the evidence and exhibits.

The first assignment of error is that the court erred in allowing the petition to be filed, and treating it as an amended and supplemental bill.

We have had occasion, time and again, to deal with the subject of amending equity pleadings, and many verbally differing statements of the rule relating to such amendments will be found in the Virginia cases. No fixed and invariable rule has ever been formulated, and in the nature of things, since the exercise of the court's discretion in each case rests upon the facts of that case, it follows that such a rule is incapable of establishment, but the general tendency is in the direction of increasing liberality in respect of allowing amendments, thereby enlarging the flexibility of judicial procedure, to the end that substantial justice, unembarrassed and unimpeded by technical niceties and meticulous refinements, may be readily afforded. This tendency is indicated by section 6104 of the Code of 1919, which provides that—

"In any suit, action, motion or other proceeding hereafter instituted, the court may at any time, in furtherance of justice, and upon such terms as it may deem just, permit any pleading to be amended, or material supplemental matter to be set forth, in amended or supplemental pleadings. The court shall, at every stage of the proceedings, disregard any error or defect which does not affect the substantial rights of the parties. If substantial amendment is made in pursuance of this section, the court shall make such order as to continuance and costs as shall seem fair and just."

This court has declared in Standard Paint Co. v. Vletor, 120 Va. 595, 91 S. E. 752, that this section should be liberally construed, and in Tidball v. Shenandoah National Bank, 100 Va. 744, 42 S. E. 868, that—

"The rule as to amendments is * * * not less liberal in equity than at law."

It was jestingly said of Chief Justice Charles Doe, of New Hampshire, who was wont to allow amendments transforming a declaration at law into a bill in equity, or adding a bill in equity to counts at law, that he would allow an indictment for murder to be amended into a declaration in debt, or vice versa. This court has not reached the latter liberality of attitude...