Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

lien on the boat or vessel shall continue for two years from the day on which the lien claim is filed, and no longer. Section 41 provides that article 63 "shall be construed and have the same effect as laws which give general jurisdiction or are remedial in their nature; and such amendments shall from time to time and at any time be made in the proceedings, commencing with the claim or lien to be filed and extending to all subsequent proceedings as may be necessary and proper; provided that the amount of the claim or lien filed shall not in any case be enlarged." Considering the objections urged by the appellees against the validity of the lien claimed in this case, in the order in which we have stated them, we observe that the question of the right of a subcontractor to a lien has been eliminated from the case by the amendment of the proceedings so as to treat the shipbuilding company, for whom the work was done, as the owner of the vessel.

We think that the filing of the lien claim on October 11, 1904, for the balance due for the installation of the electric light equipment which was begun on or after April 19, 1904, was a compliance with the requirement of section 44 that the lien claim must be filed "within six months from the commencement of the building, repairing, equipping or refitting" of the boat or vessel. If we were to adopt the contention of the appellees that all boat liens against a newly constructed vessel must be filed within six months from the commencement of its building, we would not only ignore the language of the statute, but would, whenever more than six months were consumed in building a vessel, deny the benefit of any lien at all to such mechanics and others as furnished labor or material to the vessel for that portion of its building which was done after the expiration of six months from the laying of its keel. We also think that the lien claim, in stating that the work was done and the materials were furnished "at the instance and request of said Baltimore Shipbuilding & Dry Dock Company in said Baltimore city," sufficiently complied with the requirement of section 44 as to the statement of "the place where" the boat was built, repaired, equipped, or refitted. Upon a proper construction of the contract between the shipbuilding company and the Weems Steamboat Company for the building of the Anne Arundel the former, and not the latter company, must be regarded as having been the owner of the steamer while it was being built. The essential features of that contract, which is too long for insertion here, are as follows: The shipbuilding company agrees to construct and fully complete on or before the 1st day of July, 1904, for the Weems Steamboat Company a steamer to be a substantial duplicate of the steamer Potomac then owned by the latter company. "The price for said steamer so constructed and ready for delivery within

the time aforesaid" is fixed at $91,560, to be paid in installments as set forth in the contract. The last two installments are stated to be "eleven thousand dollars ($11,000) upon completion of satisfactory trial trip; nine thousand five hundred and sixty dollars ($9,560) within thirty (30) days after delivery in accordance with the terms of this contract and accompanying specifications and the establishment of the fact that the speed and carrying capacity are equal to those of the 'Potomac.'" A memorandum attached to the contract and signed by the parties provides, among other things, that the material and workmanship of the vessel to be constructed are to be first class and to be satisfactory to the owner's inspector, who shall at all times have access to the same. In this supplemental memorandum the Weems Steamboat Company are described as "the owners." The builder was required by the contract to give a bond for $50,000 for its performance.

There is some conflict of authority as to who is to be regarded as the owner of a vessel being built, under a contract to furnish both work and materials, before her completion and delivery to and acceptance by the party for whom she was to be built. Treating the vessel merely as a chattel, its title during its manufacture would remain in its manufacturer until its completion, and would then pass by delivery to and acceptance by the party for whom it was made; but in' contracts of this class, like others, the true method of interpretation to be followed is to ascertain from the terms and circumstances of the contract what was the intention of the parties in making it. The English courts, while upholding this rule, have shown a tendency to regard the fact that the contract price for building a ship was to be paid to the builder in installments as the work progressed as furnishing strong evidence that the title to so much of the ship as was paid for by each installment was to vest in the vendee at the time of the payment. Woods v. Russell, 5 Barn. & Ald. 942; Clarke v. Spence, 4 Ad. & El. 448; Wood v. Bell, 5 EL & Bl. 772; Laidler v. Burlinson, 2 Mees. & Wel. 614; McBain v. Wallace, L. R. 6 App. Cases 589. Lord Campbell in Wood v. Bell, supra, referring to Woods v. Russell and Laidler v. Burlinson, supra, and other earlier cases, said: "Still it must be remembered after all that what we have to determine is a question of fact, namely, what upon a consideration of all of the cir cumstances we believe to have been the contract into which the parties have entered." No Maryland decision construing a shipbuilding contract of this character has been brought to our notice, nor are we aware of the existence of any. In Clarkson v. Stevens, 106 U. S. 505, 1 Sup. Ct. 200, 27 L. Ed. 139, the Supreme Court of the United States had occasion to pass upon and construe a shipbuilding contract containing many of the features of the one now before us, in order

to determine whether the title to the vessel while unfinished remained in the builder or passed to the party for whom it was being constructed. Under the contract in that case Stevens was to build for the United States government a harbor defense vessel of a specified character by a certain date. The government was to have an inspector to be admitted at all times to Stevens' shipyard, who should receive, receipt for, and mark with the letters "U. S." all materials for the construction of the vessel, and certify the accounts presented therefor. The government was to pay a gross price of $586,717.84 for the vessel, when fully completed and delivered at the Navy Yard at Brooklyn in conformity with the contract, but payments to the extent of not exceeding $500,000 were to be made on account as the work progressed upon bills certified by Stevens and the gov ernment inspector, and the balance was to be paid when the vessel, fully completed according to the contract, was delivered to the government and accepted by it. In lieu of other security for the faithful performance of his contract, Stevens gave to the government a mortgage upon his shipbuilding establishment. The Supreme Court held that the title to the unfinished vessel remained in Stevens until its completion and delivery to and acceptance by the government. In arriving at its conclusion the court reviewed the English doctrine as announced in the cases which we have cited, and referred to the rule as laid down by Lord Campbell in Wood v. Bell, 5 El. & Bl. 772, and adopted by the courts of Massachusetts in Williams v. Jackman, 16 Gray, 514, and of New York in Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55, and of New Jersey in Elliott v. Edwards, 35 N. J. Law, 265, that, "under a contract for supplying labor and materials and making a chattel, no property passes to the vendee till the chattel is completed and delivered or ready for delivery This is a general rule of law. It must prevail in all cases unless a contrary intent is expressed or clearly implied from the terms of the contract." After alluding to the fact that for a time the English courts, following a dictum in Woods v. Russell, 5 Barn. & Ald. 942, held that a provision in such a contract for a payment of the price in installments furnished strong evidence that the title to so much of the vessel as was from time to time paid for vested in the vendee, the Supreme Court further say: "The courts of this country have not adopted any arbitrary rule of construction as controlling such agreements, but consider the question of intent open in every case to be determined upon the terms of the contract, and the circumstances attending the transaction." In that case it was held that the title to the vessel remained in Stevens until its completion, and that, upon his death, pending its construction, it passed to the residuary devisee under his will; the court saying: "We are of opin

ion that the fact that advances were made out of the purchase money according to the contract for the cost of the work as it progressed, and that the government was authorized to require the presence of an agent to join in certifying the accounts are not conclusive evidence of an intent that the property in the ship should vest in the United States prior to final delivery." In reaching its conclusion, the court laid stress upon the fact that under the terms of the contract the question of its proper performance was in effect reserved for determination until after the completion of the vessel as a condition of acceptance and final payment. Applying the rule of construction thus laid down by the Supreme Court of the United States, which we are prepared to adopt, to the contract in the record before us, it results that the steamer Anne Arundel was owned by the shipbuilding company at the time when the work, for which the appellants claim a lien. was done on her. Although the contract un der which she was built, provided for the payment of the purchase money in installments as the work progressed, and the Weems Steamboat Company was entitled to have an inspector present in the yard of the builder, the determination of the question whether she had been constructed according to the contract was reserved until her completion, and her conformity to the contract in design, material, and work was plainly made a condition of her acceptance and the payment of the last two installments of the contract price. Under these circumstances we regard as immaterial the mere fact that in the supplemental memorandum appendel to the contract the Weems Steamboat Company is several times designated the "owner."

Having determined that the shipbuilding company was to be regarded as the owner of the vessel during its construction, the next question to be considered is whether the record shows a sufficient and effective amendment of the proceedings to entitle the appellants to a decree in this case for the enforcement of their lien claim. This question is not one of the circuit court's discretion in permitting the amendment, but one of its power to do so. The powers of the court in dealing with a proceeding like the present one are wider and greater than those incident to the limited jurisdiction ordinarily exercisable by it in statutory proceedings. Section 41 of article 63 declares, in positive and unmistakable language, that "this article shall be construed and have the same effect as laws which give general jurisdiction or are remedial in their nature" and authorizes the making of proper amendments at any time in the proceedings "commencing with the claim or lien to be filed and extending to all subsequent proceedings." As was said in Real Estate Company v. Phillips, 90 Md. 525, 45 Atl. 175: "It is difficult to imagine any more extensive power of amendment than that conferred by the section just quoted." In that

case the merchanic's lien claim alleged that the materials for which the lien was claimed had been furnished to A., the contractor, and that B. was the reputed owner of the property. No notice had been given to the owner of the intention to claim the lien. A bill was filed in equity for the enforcement of the lien, and, in taking the testimony in the case, it was shown that A. and C. were both builders and equitable owners, whereupon, after the time within which a lien could be filed, the plaintiffs were allowed to amend their claim, so as to allege that A. and C. were both builders and equitable owners of the property, and a decree was rendered in the plaintiff's favor. Upon an appeal to this court the decree was affirmed. It was urgently contended in that case that to permit the amendment there made was in effect to allow an entirely new claim of lien to be filed after the expiration of the time prescribed for filing the original lien, but, as both parties to the building contract knew their mutual relations and the interest of no bona fide purchaser without notice was affected, this court held that the lower court had not exceeded its power in permitting the amendment and passing a decree in the plaintiffs' favor. In the present case the shipbuilding company and the Weems Steamboat Company were perfectly familiar with the terms of the contract between them under which the steamer was built, and neither of them were prejudiced by the allowance of the amendment. The railway company, the other defendant, which purchased the completed steamer from the Weems Company, does not aver, in its answer to either the original or amended bills, that it purchased and paid for the boat without notice of the lien, nor does it in any manner set up or rely upon the defense of having been a bona fide purchaser for value and without notice of the lien. We therefore think the court below did not exceed its power in allowing the amendment.

Nor do we think that there was any such technical mistake in the manner of making the amendment as should have caused the appellants the loss of their claim to which there was no defense interposed on the merits. The appellants as plaintiffs below, having obtained leave of the court, after the evidence was in, to amend the lien claim and bill of complaint in the respect already mentioned, proceeded to amend accordingly the bill of complaint and the certified copy of the lien claim which had been filed with the bill as an exhibit, without filing an amended lien claim in the clerk's office of the superior court. The appellees did not demur to the amended bill or by any form of pleading object to the manner in which the amendment had been made, but formally adopted by a paper filed by them in the case, as their answers to the amended bill the ones which they had, respectively, filed to the original bill.

It is doubtless an excellant practice in amending a lien, even when done by leave of court in a pending suit, to also file the amended claim in the clerk's office where the original lien is required by law to be filed, and a failure to take that precaution may debar the claimant from enforcing his claim against the property in the hands of a bona fide purchaser for value without notice of the amendment. It may also be said that the Code requires inferentially, although not in express terms, that an amendment to a mechanic's or boat lien, voluntarily made by a lienor in the exercise of his statutory right, must be filed in the clerk's office where the original lien was filed; but it does not therefore follow that every amendment of the lien claim which may be authorized, during the progress of a proceeding for its enforcement, by a court of equity, in exercise of the general jurisdiction conferred upon it by article 63 of the Code, must be filed in the clerk's office where the original lien is recorded in order to be effective for the purposes of that suit. This is especially true when it is not sought by the amendment to affect the rights of other persons than those who are before the court as parties to the suit in which the leave to amend is granted, and thereby receive notice of the amendment. We see no sufficient reason for holding the amendment now under consideration to have been ineffective as against the interest of the appellees or any of them in the steamer on which the lien is claimed.

Nor do we think that for the purposes of this suit the lien given by the statute to the appellants has expired because more than two years have now elapsed since the filing of their lien claim. We cannot yield our consent to the appellees' contention that the lien expires at the expiration of the two years mentioned in section 46 of article 63, even although the proceedings contemplated by the statute for its enforcement have been instituted within two years and are still pending. To adopt so strict an interpretation of the lien law would not only disregard the provision of section 41 as to the method of construing article 63, but would frustrate the beneficient purposes of its enactment. Under the appellees' view of the law, all that would be necessary to defeat the lien which it gives to a mechanic upon a boat for work done in building it would be to prolong the defense to the proceeding for its enforcement, even if promptly instituted, by obstructive tactics, or the exercise of the right of appeal, for two years from the date of the filing of the lien claim. Or unavoidable delays for that length of time arising from crowded dockets or the illness of a judge, or other causes over which the lien claimant, however diligent, had no control, would deprive him of all benefit from his lien. The primary purpose of the lien law was to give to certain classes of claims regarded by the law as meritorious the security of a lien upon the structures

created by the labor or material forming the basis of the claim. The law does require the party entitled to the lien to enforce it at once. The views of this court upon that subject were expressed in the case of Blocher v. Worthington, 10 Md. 1, which in many respects resembles the one now before us. In Blocher's Case, in construing section 15 of the mechanic's lien law in Allegany county, enacted by chapter 76 of the Acts of 184142, which provided that "the lien of every such debt, for which a claim shall have been filed as aforesaid, shall expire at the end of three years from the day on which such claim shall have been filed unless the same shall have been revived by scire facias," etc., the court said: "The defendant contends that this section interposes an absolute bar to all further proceedings upon the claim after the expiration of three years. We think that the plain meaning of this section is that the scire facias must issue before the expiration of three years from the filing of the claim. Filing the claim creates the lien upon the property, but the party need not proceed immediately to enforce it by process." In several cases which were instituted to enforce mechanics' liens, within five years after the filing of the lien claim, this court has by its decrees, passed after the expiration of the five years, enforced the lien or at least recognized its existence. In Real Estate Co. v. Phillips, 90 Md. 515, 45 Atl. 174, the lien claim was filed on January 26, 1891, and the bill for its enforcement was filed on January 5, 1892, but the decree establishing the lien and directing its enforcement was not passed until August 18, 1899, and that decree was affirmed by this court as late as January 11, 1900. In Baker v. Winter, 15 Md. 1, which was a scire facias to enforce a mechanic's lien, our predecessors by a decision rendered after the expiration of five years from the filing of the claim reversed the judgment, and sent the case back to permit the lien to be amended in the lower court, and further proceedings had for its enforcement; and in Greenway v. Turner, 4 Md. 296, this court by its judgment rendered more than five years after the filing of the lien claim reversed the judgment of the lower court in a scire facias to enforce a mechanic's lien, and sent the case back for further proceedings. In both of these cases the scire facias was instituted before the expiration of the five years. It thus appears that this court has heretofore acted in accordance with that construction of the lien law which holds that the lien may be enforced by an appropriate suit in equity or scire facias, provided the proceeding be instituted within the five years mentioned in the statute, even though the final judgment or decree therein be rendered after the expiration of that period.

The appellees have called our attention to some decisions of a tenor opposite to the views which we have expressed, touching the expiration of mechanics' and judgment liens,

but none of the decisions relating specifically to mechanics' liens are of courts of last resort. Nor is the reasoning in any of those cases sufficiently cogent to induce us to depart from the course pursued by our predecessors in the application of the mechanic's lien law of this state.

For the reasons set forth in this opinion, the decree appealed from will be reversed, and the case remanded for further proceedings in accordance with this opinion.

Decree reversed, with costs, and case remanded for further proceedings in accordance with this opinion.

(106 Md. 226)

GARRETT COUNTY COM'RS v. BLACK

BURN.

(Court of Appeals of Maryland. Feb. 28, 1907.) 1. HIGHWAYS DEFECTS APPROACH TO BRIDGE-INJURIES-OWNERSHIP Of Bridge. Where county commissioners had charge of the approach to a bridge on which plaintiff was injured by the commissioners' negligence in failing to keep the approach in proper repair, they were liable to plaintiff, though the county had no control of the bridge, and the commissioners were under no duty to repair it. 2. SAME EVIDENCE.

Where an approach to a bridge from which plaintiff fell and was injured had been uninterruptedly used by the public for over 20 years, and repairs had been made on it from time to time by the county, the duty of maintaining such approach in a safe condition was on the county commissioners. 3. SAME-INSTRUCTIONS.

An instruction that if a road or approach to a county bridge over the Potomac river on the Maryland side thereof was negligently left to remain by defendants, county commissioners, in an unsafe and unprotected condition for persons traveling over such approach, and plaintiff while walking over the same in the exercise of due care was thrown to the ground and injured by reason of the unsafe and defective condition of the highway, she was entitled to recover, was proper.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 540.]

4. TRIAL INSTRUCTIONS-APPLICABILITY TO EVIDENCE.

A request to charge was properly refused where there was no evidence to sustain the proposition asserted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 596.]

[blocks in formation]
[ocr errors]

BRISCOE, J. This suit was originally brought in the circuit court for Garrett county, where a trial was had, but the jury failed to agree upon a verdict, and were discharged. It was subsequently removed to the circuit court for Allegany county, where it was again tried, and a verdict and judgment were rendered for the plaintiff. The defendant has appealed.

The suit was brought by Mary E. Blackburn, widow, against the county commissioners of Garrett county to recover damages for personal injuries sustained by the plaintiff by reason of the unsafe condition of one of the public roads of Garrett county, and the approach to a bridge across the Potomac river on the Maryland side to the West Virginia shore. The declaration, in substance, states that on or about the 3d day of September, 1904, the county commissioners of Garrett county, disregarding their duties and obligations imposed by law, did negligently and carelessly allow and permit one of the bridges, the road and approach thereto, under their charge in Garrett county, upon one of the public roads of the county, to wit, the road leading from the town of Kitzmillersville, Garrett county, over the Potomac river, to the village of Blaine, W. Va., at the west end of the bridge on the Garrett county side, to be out of repair, and to be wrongly built in its approach at the end of the bridge, and to remain unmended, in an unsafe and dangerous condition, and in failing to provide guard rails to be put up and along the walls leading up to the bridge; that on the day herein mentioned the plaintiff, while passing and walking up the road and approach to the bridge on the Garrett county side and intending to go over the bridge to a store on the West Virginia side, for the purpose of buying provisions for her home, by reason of the careless, neglectful, and improper manner in which the approach to the bridge was built, and in not having any guard rails to protect persons in passing over the approach to the bridge, and that while the plaintiff was exercising due, proper care and caution she stepped upon a stone, which caused her to fall over the approach to the bridge a distance of 8 feet, striking her body on a pile of loose stone at the bottom of the river, breaking her ankles and the bones of her legs, and receiving other serious injuries from which she cannot recover. It further alleges that the approach to the bridge on the Maryland side was so defective and badly out of repair, and so unsafe and dangerous by reason of the negligence of the county commissioners, and especially in not providing guard rails along and on the side of the approach to the bridge, as to have caused the injury and damage sustained by her. The defendant demurred to the declaration, but the demurrer was overruled. As the ruling of the court upon the demurrer presents the same questions as are raised on the prayers we will consider them together.

The principal questions in the case arise upon the prayers, and relate to the alleged negligence of the defendant and to the contributory negligence of the plaintiff. At the trial of the case the defendant reserved two exceptions. The first to the rejection of the defendant's prayer offered at the close of the plaintiff's testimony asking the court to withdraw the case from the jury, and the second includes the rulings on the prayers offered at the close of the case; to wit, in granting the plaintiff's first and second prayers, and in rejecting defendant's second, third, seventh, eighth, and tenth prayers. There was also an exception to the ruling of the court in overruling defendant's special exception to plaintiff's first prayer. As to the defendant's prayer offered at the close of the plaintiff's case and its second and third prayers at the close of the whole case, asking the court to withdraw the case from the jury, upon the ground that the evidence was legally insufficient to entitle the plaintiff to recover, it is sufficient to say that there was abundant testimony as to the negligence of the defendant, even if it can be regarded as conflicting, to authorize the court in rejecting these prayers.

The main contention in the case raised by these prayers is the want of evidence to show that the bridge was built by Garrett county, or belonged to it or was accepted or under its control, and that it was the duty of the county commissioners of Garrett county to keep it in repair. A complete answer to the contention here made is found in the fact that according to the uncontradicted evidence the accident did not occur upon the bridge, but in the public road as the plaintiff approached the bridge, and within a few feet of the bridge proper. The approach to the bridge was about 20 feet long, and led in an angular shape to the bridge proper. The witness Junkins who had lived at Kitzmillersville about 9 years, and who had been road supervisor of Garrett county for 5 or 6 years, testified as follows: "Q. Do you know the road that leads to this bridge? A. Yes, sir; I have crossed it. Q. Were you in charge of that road? A. Yes, sir. Q. How wide is that bridge? A. Twelve feet in the clear. Q. How wide is the track of the road leading to the bridge, the approach to the bridge? A. The road is wider than the bridge." He further testified that there were no guard rails to the approach to the bridge; that he had made repairs by "raising it up a little," and at the time of the accident it was in a bad condition. The witness Rafter testified: That he had resided in Kitzmillersville about 38 years, and that he was familiar with the approach to the bridge on the Maryland side. That the bridge was built about 1878 or 1879. The approach to the bridge was built of loose rock, without any mason work at the sides. the middle was filled in with large boulders hauled from the river, and a little dirt put on them. That the floods of 1889 and 1899 put the

« ΠροηγούμενηΣυνέχεια »