pality, on the ground, tersely put, in substance, by counsel for defendant, that the law exacts of municipalities only that which is practicable and reasonable in regard to keeping streets open, in repair, and free from nuisance; that the duty of the municipality, under the statute, must be interpreted upon a reasonable basis in reference to the actual condition of affairs; that impracticable things are not required; and that to hold the city liable, under the allegations of this petition, would be to require that which is impracticable, and to impose an onerous and unreasonable burden upon it.

Whether or not a case might be made, growing out of a peculiar situation of a walk at a greatly frequented place upon one of the most public streets, wherein the city might be held for damages arising from slipperiness of ice alone, we neeed not here consider. Such a case has not been made. The petition does not state a cause of action, and the judgment of the court of common pleas is affirmed.

(44 Ohio St. 516)

HOLBROOK v. IVES and others.

(Supreme Court of Ohio. December 7, 1886.)

1. MECHANIC'S LIEN-DEATH OF OWNER OF HOUSE-RIGHT OF MATERIAL-MAN TO CONTINUE WORK AND PERFECT LIEN.

By virtue of the provisions of section 3205, Rev. St. Ohio, when the progress or completion of the work on any house is suspended by the decease of its owner, a "material-man," who had a contract with such owner to furnish material for such house, and who has not consented to such suspension, may proceed with such work in accordance with the terms of the original plan; and, on completion thereof, he may perfect a mechanic's lien on the property for the work so done, and for the materials so furnished.

2. SAME-PRIORITY OVER LIEN OF JUDGMENT CREDITOR OF DEVISEE OF DECEDENT. Such lien is superior to that of a levy upon the property, made after such decease, by a judgment creditor of the devisee of such decedent, though such levy was made before such work was done.

(Syllabus by the Court.)

Error to district court, Hamilton county.

On the trial of the case the court found the facts, from which finding the following facts are taken:

Maria Plant died April 27, 1882, leaving a will, by which she provided for the payment of her debts and the expenses of administering her estate, and she gave all the rest and residue of her property to Thomas Plant, her husband; and she appointed J. F. Baldwin executor of her will. She left no personal property, but died seized of a certain leasehold estate described in the petition. One Marsh, the owner of the fee of the lot, had obtained a judgment against her on the twenty-seventh day of January, 1880, which was wholly unsatisfied at the time of her death.

"Fourth. At the time of her death there was standing on the west half of said lot a frame building which had been erected by her. Shortly prior to her death she had commenced the erection of a house on the east half of the lot, which, at the time of her death, was somewhat less than half completed. This leasehold estate, at the time of her death, was worth some $2,400 or $2,500, but, on account of the unfinished and unsalable condition of the east house, it was not likely to bring so much at a public sale.

"Fifth. Prior to March 7, 1882, Maria Plant had contracted with the defendant, S. S. Holbrook, a dealer in lumber and building material, to furnish and deliver certain lumber and material in his line, necessary to build the east house, the same to be delivered from time to time, as required by her husband, Thomas Plant. Thomas Plant was and is a carpenter and builder by trade, and was superintending and building the east house, and had designed the plan for the same, which plan had been adopted and approved by Maria

Plant; but the same was not reduced to writing, or placed on paper, except a slight sketch of front elevation, not offered in testimony.

"Sixth. Holbrook commenced to deliver lumber under the contract about March 7, 1882, and prior to Maria Plant's death had delivered, in pursuance of the contract, lumber and material amounting to $419.12, which was used in erecting the east house. From and after the death of Maria Plant, all work and progress on the east house was suspended on account of her death. "Seventh. Holbrook, on the twenty-ninth day of May, 1882, filed in due form and obtained a valid mechanic's lien on the leasehold, to secure the payment of the sum of $419.12 and interest, as set forth in the first count of his answer and cross-petition herein.

"Eighth. There were some $2,000 of liens on the leasehold prior to the lien of Holbrook for said sum of $419.12. Said east house, at the time of Maria Plant's death, was in an unsalable condition, by reason of its being only partly completed. It was also, for the same reason, unprotected from the weather, subject to be drenched, inside as well as outside, at each rain-storm, and subject to rapid depreciation in value by the elements, unless speedily finished.

"Ninth. Holbrook had no actual knowledge, until after Maria Plant's death, of any liens on said leasehold prior to his lien for the sum of $419.12; but having learned of the existence of the prior liens, prior to July 1, 1882, he had good reason to believe that, if the leasehold should be sold at public auction with the east house in its then unfinished and unsalable condition, it would not bring enough to pay the prior liens upon it, and pay in addition his claim for $419.12."

"Eleventh. No work was done, nor was any progress made, on the east house, from the death of Maria Plant until July 1, 1882. Thomas Plant had in the mean time declared to Holbrook that he was unable to finish the house himself for want of means, and thereupon, on July 1, 1882, Holbrook, as such material-man, caused the work on the east house to be recommenced, and then and thereafter, as the same was needed, furnished and delivered all the remaining lumber and building material in his line necessary to complete the east house according to its original plan and design; which lumber and material, so furnished and delivered, was used in the completion of the east house, and amounted in the aggregate to the sum of $263.52. Holbrook also employed and paid Thomas Plant to superintend the completion of the east house according to the original plan, and to do the remaining carpenter work thereon, and employed and paid other mechanics, and paid for other material not in his line necessary to the completion of the east house; so that Holbrook paid out in cash for the completion of the east house the sum of $755.16, in addition to the amount of material in his own line, furnished as above shown,making altogether the sum of $1,018.68 paid out and expended by Holbrook in completing the east house. S. S. Holbrook fully completed the house on the twenty-second day of December, 1882, according to the plan.

"Twelfth. Thereupon Holbrook made an affidavit containing an itemized account of the amount and value of the lumber and material as furnished by him, and of the items of cash paid out by him in so completing the house, and a description of the leasehold, all in due form of law, for the purpose of obtaining a mechanic's lien under the laws of Ohio; and on the fifth day of April, 1883, duly filed the same with the recorder of Hamilton county, and the same was thereupon duly recorded. This was so done by Holbrook for the purpose and with the intent of obtaining, having, and securing a lien on the leasehold, to secure to himself the payment of the sum of $1,018.68 and interest, under the provisions of section 3205 of the Revised Statutes of Ohio. "Thirteenth. J. F. Baldwin was duly qualified and is still acting as executor of the will, and was at the same time the attorney for the plaintiff herein. "Fourteenth. About the time Holbrook commenced to finish the east house

he agreed with J. F. Baldwin that he would keep a correct account of all the items of labor, cash, and material used in finishing the same; that he would finish the same as economically as possible; and that, in taking his lien for the costs and expenses of completing the house, he would charge only for actual cash paid out, and the regular market prices for material furnished by him. Baldwin also prepared a written agreement, which was signed by Baldwin as executor, by Holbrook, and by the creditors of Thomas and Maria Plant, except A. Ives & Sons, prior to July 1, 1882, providing for the completion of the house upon the terms above mentioned. Said written agreement could not be found, and the paper is not in evidence, but the foregoing is the substance of the same, as determined by parol testimony. Holbrook fulfilled his agreement in that respect in good faith, and his bill, $1,018.68, for the completion of the house, is a just and reasonable bill. In consideration of the above agreement on Holbrook's part, J. F. Baldwin, as attorney for plaintiff, agreed not to cause the leasehold to be sold to satisfy plaintiff's judgment herein until Holbrook should have reasonable time to complete the east house.

"Fifteenth. Thomas Plant, and many of the unsecured creditors of Maria Plant and of Thomas Plant, advised J. F. Baldwin that, in their judgment, the leasehold would realize more for the unsecured creditors if, before selling the same, he would allow Holbrook time to complete the east house, and to have his lien on the leasehold for the cost of completion, than it would realize for them if he should expose the leasehold to sale at once, with the east house in its unfinished condition, which advice was also embodied in the written agreement; but the defendants, A. Ives & Sons, were not consulted, and expressed no opinion on the question.

"Sixteenth. At the time of Maria Plant's death the defendants, A. Ives & Sons, held a valid judgment of the court of common pleas of Hamilton county against Thomas Plant for the sum of $511.58, and interest at 8 per cent. from May 5, 1879. On the sixteenth day of May, 1882, defendants, A. Ives & Sons, by virtue of the judgment, caused execution to be duly levied on the interest of said Thomas Plant in said leasehold estate.

"Seventeenth. On the twenty-third day of May, 1883, the leasehold estate was sold by order of this court, to satisfy plaintiff's judgment herein rendered January 27, 1880, for the sum of $4,100, and S. S. Holbrook became the purchaser thereof at said sale. The proceeds of the sale have been distributed by order of court as follows: (1) Costs of this action, $89.54; (2) taxes, $110.39; (3) plaintiff's judgment for money loaned, $1,482.49; (4) plaintiff's judgment for rent, $152.61; (5) rents accrued since said judgment, $230.44; (6) Holbrook's first mechanic's lien, $451.60; (7) paid to the executor, $535.83, leaving a balance undistributed of $1,047.10, which is the amount claimed by Holbrook for completing the east house, in the second cause of action set forth in his cross-petition herein, and interest thereon to the date of said order of distribution.

"Eighteenth. Maria Plant was owing debts at the time of her death, secured and unsecured, in the aggregate upwards of $3,400. She left no property other than the leasehold estate above mentioned, some of which debts and claims are contested by A. Ives & Sons.

66

'Nineteenth. And, at the request of counsel for A. Ives & Sons, the court finds the following: Prior to Maria Plant's death, Baldwin had loaned to his client, the plaintiff B. K. Marsh, the sum of $600, with the verbal agreement that he should retain the same out of the money collected by him on plaintiff's judgment herein, provided Marsh should not sooner repay Baldwin said sum. About September, 1882, Baldwin advanced to Marsh the balance then due him on said judgment, after deducting the sum of $600 and interest, and thereupon became the equitable owner of said judgment. About June 6, 1881, Baldwin purchased from Marsh the fee of said lot, subject to said lease, and paid therefor the amount of purchase money named in the

privilege purchase contained in the lease, and all ground rents accrued under the lease up to date of purchase; and on distribution herein, the several sums ordered paid to plaintiff were in fact paid to Baldwin in his own right."

And as conclusions of law resulting from the above stated facts, following the decision of the district court reversing, in part, a former judgment herein, the court find that S. S. Holbrook did not obtain a lien on the leasehold to secure the payment of said sum of $1,018.68, and interest, as alleged in said second count in his answer and cross-petition, and that he was not entitled to a lien thereon for the material furnished by him, and the cash expended, after Maria Plant's death, in completing said east house, and is not entitled to have said sum of $1,047.10 paid over to him on distribution. It is therefore ordered that Herman Merrell, master commissioner, pay over the balance in his hands, amounting to $1,047.10, to J. F. Baldwin, as-executor of Maria Plant, to be accounted for by him according to law and the will of the testatrix, and that defendant, S. S. Holbrook, pay the costs herein. To all of which conclusions of law and judgment, defendant, S. S. Holbrook, by his counsel, excepts.

On proceedings in error the district court affirmed the judgment of the superior court, and S. S. Holbrook now seeks a reversal of those judgments. J. F. Baldwin and Archer & McNeil, for plaintiff in error. Ferris & Wilder, for defendants in error.

FOLLETT, J. Is Holbrook, as a "material-man," protected by section 3205 of the Revised Statutes? That section provides that "if the progress or completion of the work on any property designated in this chapter be suspended by the default or decease of its owner, without consent of such head or subcontractor or material-man, he or they, or any of them, may proceed with the work, in accordance, however, with the terms of the original plan or contract, and, on completion thereof, have either or all the remedies provided by this chapter,"

The terms of this section are plain, and need no construction. If the work be suspended by the decease of the owner of the property, and such suspension is without the consent of the head contractor, or of the subcontractor, or of the material-man, he or they, or any of them, not consenting to the suspension, may proceed with the work in accordance with the original plan or contract, and, on the completion thereof, such person or persons may have either or all the remedies provided in that chapter, including the benefits of a mechanic's lien.

The facts found in this case are that Maria Plant owned the leasehold estate and the buildings thereon; that "shortly prior to her death she had commenced the erection of a house on the east half of the lot, which, at the time of her death, was somewhat less than half completed;" that she had "adopted and approved" a plan for the house, which plan Thomas Plant had designed; that she had contracted with Holbrook to furnish and deliver certain lumber and material, in his line, necessary to build the house, and to deliver the same, from time to time, as required by Thomas Plant, the husband; that prior to her death a part of the material was furnished by Holbrook in accordance with their contract; and that the progress of the work was suspended by the decease of Maria Plant, the owner, without the consent of Holbrook, the material-man. Thus every required precedent condition was fulfilled; and Holbrook, the material-man, did proceed with the work in accordance with the terms of the original plan, and did complete the house.

It is claimed that Holbrook's contract with the owner deceased did not provide for the completion of the house by him. The language of his contract alone did not so provide; but his contract was made under the provisions of section 3205 of the Revised Statutes, and the clear provisions of that statute became a part of the contract, and these provisions were of full force on the

suspension of the progress of the work by the decease of Maria Plant. "The laws which subsist at the time and place of the making of a contract, if it is to be there performed, enter into and form a part of the contract, and this is so whether such laws affect its validity, construction, discharge, or enforcement." Roberts v. Cocke, 28 Grat. 207. "It is also settled that the laws which subsist at the time and place of making a contract, and where it is to be performed, enter into and form a part of it as if they were expressly referred to or incorporated in its terms." Mr. Justice SWAYNE in Von Hoffman v. City of Quincy, 4 Wall. 550. This principle of law seems to have been overlooked by the court below, and by the defendant in error.

It is also claimed that a mechanic's lien is an entirety, and that Holbrook could not have two such liens in this case. If we concede the former claim, the latter one would not follow. During the life-time of Maria Plant, Holbrook could only furnish materials for the house, and, upon her death, for such materials furnished, he could perfect his lien therefor, as he did; and, when her decease changed the obligations of the contract in its practical effect, Holbrook did proceed with the work both as a material-man and as a workman. This he had a right to do, by virtue of his contract and the provisions of the statute. For all he thus furnished and performed he could perfect his second mechanic's lien, unless in some way he was prevented.

Did the levy of A. Ives & Sons prevent or postpone Holbrook's second mechanIc's lien? This levy was for a judgment debt due A. Ives & Sons from Thomas Plant, the devisee of Maria Plant. Thomas Plant took the property subject to the debts of Maria Plant, and also subject to her contracts respecting this property, including her contract with Holbrook by virtue of which he obtained his second lien. The levy was only upon the property interest therein devised to Thomas Plant, and it is subject to this lien of Holbrook. A. Ives & Sons could not obtain a better right or title than Thomas Plant possessed. The facts found, as to what agreements were made by Holbrook after the decease of Maria Plant, are important only as showing the utmost good faith on the part of Holbrook in his completion of the house under his optional contract to complete it; and, doubtless, such agreements were not necessary to enable Holbrook to secure his rights, but such agreements could not destroy his rights under the statutes. The facts found show there is no equity in the claim of the defendants in error. This expenditure of $1,018.68 seems to have increased the salable value of the property at least $1,600,-a profit of $581.32, which may inure to the benefit of the defendants in error; and they need not have done otherwise than stand by and see this expenditure of money, as their levy did not prevent or destroy the rights of Holbrook. The facts of this case show clearly the importance of such a statutory provision, and its great value to material-men, to contractors, and to such workmen. The court erred in its conclusions of law, and there was error in affirming the judgment. The judgments below are reversed, and judgment is rendered for S. S. Holbrook.

(44 Ohio St. 525)

COLUMBUS, H. V. & T. RY. Co. v. THURSTIN.

(Supreme Court of Ohio. December 7, 1886.)

ERROR-DISMISSAL OF PETITION-NO EXCEPTIONS-FINDINGS OF FACTS BY TRIAL COURT -REV. ST. 2 6710.

A motion to dismiss a petition in error, upon the alleged ground that summons in error was not served nor appearance entered within two years after the rendition of the judgment below, was heard in the circuit court upon evidence, and sustained. No bill of exceptions was taken, but the court stated upon the record the facts found from the evidence, and upon which the dismissal was ordered. Upon this record the plaintiff in error seeks a reversal in this court of the order of dis