
    King, Gilbert & Warner v. Ship Building Company.
    
      Mehanics' liens—How perfected—Do not attach for labor gratuitously performed.
    
    1. It is essential to the validity of a lien for machinery furnished for , a manufactory or other building, as provided in section 3184, of the Revised Statutes, that the affidavit required by section 3185, be filed within the time therein prescribed.
    2. Under a contract, by the terms of which, one of the parties agrees to make certain machinery for the other, and furnish it “F. O. B. cars,” at a designated place, for a stipulated price, the machinery is furnished, -within the meaning of the statute, when it is delivered in accordance with the contract, on board the cars at the place named, withorrt expense to the purchaser; and to obtain a lien therefor, the necessary affidavit must be filed within four months from that time.
    3. The time for so perfecting the lien cannot be extended by the performance of labor under another contract, or gratuitously, in placing the machinery in position in the manufactory or building.
    4. Separate contracts cannot be tacked together so as to enlarge the time for taking the lien under either; nor can a lien be obtained under the statute, for labor gratuitously performed.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Meigs county.
    The original action was brought' in the Court of Common Pleas of Meigs county, by Simon Curtis, against The Standard Nail & Iron Company, and others. In the action, The Cleveland Ship Building Company sought, by cross-petition, to enforce a mechanics’ lien against the property involved, which was formerly owned by the Nail & Iron Company, for a balance of $4,450, and interest from April 14, 1887, of the purchase-price of an engine, alleged to have been furnished by the former, to the latter company, in the construction of its steel plant and nail mill at Middleport, Ohio. The Ship Building Company alleges in its cross-petition, “that the work of furnishing and setting up the engine was completed on the 14th of April, 1887, and that within four months thereafter, to-wit, on the 13th of August, 1887, it filed with the recorder of said county of Meigs an affidavit containing an itemized statement of the amount and value of said materials' and work and machinery with all credits and offsets thereon, and a description of •said land on which the said steel plant and nail mill stands, •according to the requirements of the statute in such case made and provided; and which was recorded in volume No. 2 and on page 259 of the records of liens of said Meigs county, Ohio, whereby this defendant’s said claim became a lien on said steel plant and nail mill, and the said lots of land on which they stand, from the said 14th day of April, 1887.”
    The plaintiffs in error, King, Gilbert & Warner, who were parties defendant in the action below, answering the ■cross-petition above referred to, say that on the 2nd day of August, 1887, they became the owners of the steel plant and mail mill, and the several lots and parcels of land on which they stand, and of all the estate and title that the Nail & Iron Company theretofore had therein. Their answer also denies that the engine was furnished at the time alleged in. the cross-petition, or that the Ship Building Company within four months after it was furnished filed its affidavit for a lien as alleged; and it avers, that the engine was furnished tmder a written contract made between the Nail & Iron Company and The Cuyahoga Steam Furnace Company, December 17, 1886, which was assigned to the Ship Building Company, by the Furnace Company, March 9, 1887, and that it was furnished more than four months before the Ship Building Company filed its affidavit for the lien, and was so furnished partly by it, and partly by the Furnace Company. It is further alleged, in an amendment to the answer, that the Ship Building Company took the negotiable promissory motes of the Nail & Iron Company in payment of the balance due on the engine, and afterward negotiated them; whereby, it is claimed, its right of lien was waived. The allegations of the amendment, but not of the original answer, were controverted by reply. The cause was tried on appeal in the circuit court, which found for the Ship Building Company, and rendered judgment in its favor. A motion for a new trial by King, Gilbert & Warner was overruled, and a bill of exceptions,- embodying all the evidence, and the proceedings of the court, was duly allowed and filed, and they now prosecute error here to reverse the judgment of the circuit court. Such further statement of the facts appearing upon the record, as is necessary to a correct understanding of the question upon which the case is reported, will be found in the opinion.
    
      Harrison, Olds & Marsh, for plaintiffs in error.
    The affidavit, etc., for- the lien was not filed within four months from the date when the engine was furnished.
    The affidavit for the lien, as recorded, states “that said labor was done and materials and machinery were furnished under and by virtue of a written contract, a-copy of which said written contract, with all transfers and assignments thereon, is hereto attached, marked Exhibit B.”
    The contract attached, which was also separately offered in evidence, reads: “ This company will build and furnish
    you one blowing engine, E. O. B. cars, in Cleveland, for the sum of $8,900—$2000 cash, $2,450 on shipment of engine, and $4,450 four months from shipment.”
    The account attached to the lien, as well as the petition, states that the $2,000 cash wTas paid at the execution of the contract, and that the $2,450 payable on shipment of the engine was paid March 5th, 1887.
    When this engine was furnished E. O. B. cars in Cleveland, this contract was fulfilled and completely performed by the vendors, and this was more than four months before any lien was filed.
    If there was any labor to be performed, or any material was furnished beyond the terms of this written contract, it was extra labor or material, and under another contract. Work or material extra a written contract, is under a different contract, and even in pleading must be sued for as a separate cause of action.’
    
      This ■written contract was one entire contract, and was to be performed in Cleveland, where, by its express terms, the blowing engine was to be furnished. The language of this contract is plain and explicit, leaving no room for construction. It was an unconditional sale and delivery of the engine at Cleveland, more than four months before the lien was filed.
    There was no contract requiring the vendor to superintend the putting together of the parts of the engine and testing it. This was done for the benefit of the vendor.
    The work of erecting the engine was to be done and paid for by the vendee, if he chose to do it at all.
    The seller was permitted to have an inspector and advisor present during the erection of the engine, for the reason that his credit and reputation as an engine builder might not be impaired by unskillful application of the parts of the engine which he had already built and furnished in Cleveland, and for the further reason that if the purchaser should improperly join the parts together, so that the engine would not work well, he would not thereby be induced to believe and claim that the engine was not built according to contract, and for the still further reason that the builder might have a witness to show that the engine, if it did not work properly, was nevertheless properly constructed, and that the fault arose solely from the improper union and handling by the vendee.
    To obtain these several advantages unto himself the vendor could well afford to volunteer an inspector at his own expense, which might also benefit the vendee, but the vendor under this written contract cannot charge the vendee for the services of such inspector, and in fact the vendor made no such charge and no price for the same was ever agreed upon by the parties.
    As we have said, the only lien claimed is for the machinery furnished at Cleveland under the written contract, more than four months before the lien was filed. If the work of superintending the erection of the eugine was performed by the vendor under any contract between him and the vendee, it was performed under a separate and different contract from the 'written contract, and a separate lien should ■have been taken for such extra work. It cannot be tacked on to the written contract, and thereby bring the work done under the written contract, within the four months’ limitation.
    
      W. H. Lasley, for defendant in error.
    The plaintiffs in error argue that the machinery furnished was delivered in Cleveland on the 5th of March, 1887. And that this was more than four months before the lien was filed. And further, if this be not true, the work of erecting the engine in Middleport was fully completed more than four months prior to the filing of the lien.
    The evidence in the plaintiffs bill of exceptions shows, that the contract to furnish the machinery was not completed until the engine was set up and put in running order upon foundations built according to the order of The Cleveland Ship Building Company.
    Again, this written contract, so ardently relied on, cannot mean what gentlemen claim for it, to wit: That the engine contracted for was to be, and was, delivered “F. O. B. cars in Cleveland,” March 5,1887. The proposition which was accepted, was, “This company will build and furnish you one vertical direct acting blowing engine * * * on heavy bed-plate, and columns being of the general style of the engine built by us for the Roane Iron Co., F. O. B. cars, Cleveland.”
    Now an engine built on heavy bed-plate, is one of which the parts are made, put together and set up, ready for operation. It is now an engine ready for delivery, and not before. At any stage of the work prior to this it is not, an engine built. All the separate parts of the engine not put together is not an engine built on a heavy bed-plate.
    The engine in question weighed ninety tons, had a 38-in. cylinder; stood on a bed-plate ten feet square, twenty-seven feet high, and its flywheels were sixteen feet in diameter. The idea of building such a monster and delivering it F. O. B. cars at Cleveland, to be transferred to Middleport by rail, is simple absurd.
    
      Then the construction of this contract contended for by the plaintiff in error cannot be given to it. But the court must give it a reasonable construction.
    The parts of the engine were afterwards made and shipped to Middleport, and set up and put in running order by The Cleveland Ship Building Company, and accepted by The Standard Nail and Iron Company. It was not accepted until it was set up. Now we submit that it would be fair to construe this contract as the parties to it seemed to understand it, and as they carried it out. It seems to us it would be unfair to give it another and entirely different construction.
    Taking this view of the contract, it remains to be seen whether the lien was filed in time. It seems to us clearly so. Revised Statutes, Sec. 4951, provides that, “ Unless otherwise specially provided, the time -within which an act is required by law to be done shall be computed by excluding the first day and including the last, and if the last day be Sunday, it shall be excluded.” This being the law, if the work on the engine was completed on the 12th of April, 1887, the lien having been filed on the 13th of August was in time. But if this were not the law there is sufficient evidence to sustain the finding of the conrt below, that the work was completed on the 13th of April. Besides the pressure guage, which was agreed by both parties to be a part of the engine, was not shipped from Cleveland until the 14th of April. These things, we think, taken together, bring us clearly within the time limited for filing our lien.
   Williams, J.

The validity of the lien asserted by the Ship Building Company is contested upon various grounds, one of which is, that it was not perfected in time. That is the only one we deem it necessary to consider, in disposing of the case. By the provisions of our statute in force when the engine was furnished and the affidavit for the lien was filed, a person who performs labor, or furnishes machinery or material, for constructing a mill or manufactory, by virtue of a contract with the owner, is entitled to have a lien to secure payment for the same, upon the building, and the material or machinery so furnished, and upon the interest of the owner in the lot or land on which the building then stands, or to which it may be removed. In order to obtain such lien, the person performing the labor, or furnishing the machinery or material, is required, within.'four months from the time it is performed, or furnished, to file with the recorder of the county where it is performed, or furnished, an affidavit, containing an itemized statement of the amount and value of such labor, machinery or material, a copy of the contract, if it is in writing, a statement of the amount to be paid thereunder, and the times when the payments are to be made, and a description of the land on which the building stands. Revised Statutes, Sections 3184, 3185. As the lien has no existence except by force of the statute, it is essential to its validity that it be taken and perfected within the time allowed by the statute; that is, that the affidavit required, be filed within four months from the time the labor is performed, or the machinery or material is furnished. The affidavit of the defendant in error, for the lien it claims, was filed with the recorder of the county where the property is situated, on the 13th day of August, 1887. It contains a statement of the account of the defendant in error against The Standard Nail & Iron Company, which consists of a single item, bearing the date of April 14, 1887, for “building and setting up one vertical direct blowing engine, as per contract, made December 17, 1886, with Cuyahoga Steam Furnace Company, $8,900.00.” There is a credit of $2,000, of the date of December 27, 1886, and one of $2,460, dated March 5, 1887, leaving a balance due of $4,450. The affidavit also states that the labor was performed and machinery furnished “under and by virtue of a written contract between the said The Cuyahoga Steam Furnace Company and the said The Standard Nail & Iron Company, dated December 17, 1886, and afterward, on the 9th day of March, 1887, assigned and transferred to the said The Cleveland Ship Building Company.” A copy of the contract, and of the assignment, are attached to the affidavit. The contract, which consists of a proposition in writing, made by the Furnace Company to The Nail & Iron Company, and its acceptance by the latter company, is as follows:

“Cleveland, Ohio, Dec. 17, 1886.
“Standard Nail & Iron Co., Middleport, Ohio:
“ Gentlemen : This company will build and furnish you one vertical direct-acting blowing engine, having steam cylinder 38 inches bore, 54 inches stroke, on heavy bed plate and columns being of the general style of the engine built by us for the Roane Iron Co., F. O. B. cars in Cleveland, for the sum of eighty-nine hundred dollars ($8,900.-00), payments to be made as follows: Two thousand dollars ($2,000.00) cash, twenty-four hundred and fifty dollars ($2,450.00) on shipment of engine and forty-four hundred and fifty dollars ($4,450.00) four months from shipment, with interest at six per cent. Engine to be delivered on or before February 15, 1887.
“Cuyahoga Steam Furnace Co.,
“By J. F. Halloway, Prest.
“Accepted: Standard Nail & Iron Co.
“By Chas. H. Greene, Prestí
The assignment of the contract to the defendant in error is endorsed upon it, and is in the following language:
“In pursuance of the terms of written contract this day executed between this company and The Cleveland Ship Building Company, the within contract is hereby assigned to said company, it assuming all our obligations therein.
“Cuyahoga Steam Furnace Co.,
March 9,1887. By J. F. Holloway, Prestí

The engine was delivered on board the cars at Cleveland, ready for shipment, and actually shipped to the purchaser, according to its directions, as early as March 5th, 1887; and, it was received by the purchaser at Middleport, not later than March 14, 1887. The evidence shows that the defendant in error sent one of its employes to Middleport, to superintend the work of setting up the engine; and, that work was not finally completed, and the engine tested, until the 13th day of April, 1887.

The question of law which is here presented for decision is, when, under the contract, was the engine furnished, within the meaning of the statute which makes it necessary to the perfecting of the lien that the affidavit therefor shall be filed within four months from the time the machinery or material is furnished? Was it when the engine was delivered on the cars ready for shipment? Or, not until it was set up in the mill of the purchaser? If at the last mentioned time, the affidavit for the lien, which was filed on the 13th day of August, 1887, was within the period allowed by the statute, and the lien is a valid one; but, if at the time first mentioned, the affidavit was filed too late, and no lien was obtained.

In contracts-for the sale and delivery of personal property, the abbreviation “E. O. B.” is frequently employed, and means that the property is to be delivered on board the designated vessel or vehicle of transportation, without expense to the buyer; so that, the obligation of the Furnace Company, and of its assignee, the defendant in error, under the written contract with the Nail & Iron Company, was to construct and deliver free of expense to the latter company, on board the cars at Cleveland, an engine of the kind therein described, and it imposed no other obligation upon either. When that was done, the contract was fully performed on the part of the furnace company, and the defendant in error; the title to the engine at once vested in the purchasing company, which then became bound for the payment of the whole purchase price, as stipulated in the contract. As the only obligation of the defendant in error, or of the company from which it took the contract by assignment, was to “furnish” on board the cars, an engine of the description called for by the contract, when the delivery on the cars was complete, the engine was furnished in compliance with the contract, and within the meaning of the statute. It is contended, however, that there was a verbal understanding, between the selling and purchasing companies, that the former should put the engine in good working order in the latter’s mill, before the latter company was bound to accept or pay for it; and evidence tending to prove such an understanding was given, over - the objection of the plaintiffs in error, on the trial. Such understanding is at variance with the terms of the written contract; and, as all negotiations between the parties prior to, or contemporaneously with the execution of the contract were merged in it, the evidence was inadmissible, unless it tended to prove a subsequent and separate agreement; and, though the plaintiffs in error were not parties to the written contract, they acquired, as the record shows, by purchase at judicial sale, the property against which the lien was being asserted, and we see no reason why they might not, for the protection of their rights, insist upon the proper application of the rules of evidence, and, that the operation of the contract should be in accordance with its terms and legal effect. If the verbal agreement was subsequent to, and independent of the written contract, labor performed under it could not enlarge the time for taking a lien for the engine. We entertain no doubt that when, by the same contract, a person binds himself to furnish machinery for a building, and also to place it in position, he may have a lien both for the machinery furnished and the labor performed, and perfect it by filing the necessary affidavit containing the required statement of the amount and value of both, within four months after the completion of his contract. In such case the furnishing of the machinery is not complete until it is placed in position according to the contract. But, where the contract is only for furnishing machinery, as in this case, and labor is performed in placing it in position, or otherwise in the construction of the building, under a separate agreement, or gratuitously, the lien for the machinery must be taken within the time limited by the statute, after the contract under which it was furnished has been performed. Separate contracts cannot be tacked together so as to extend the time for taking the lien under either. To create a valid lien for what is done under each contract, the necessary affidavit must be filed within the period limited by the statute, after performance of that contract. Nor, can a lien be obtained for labor gratuitously performed; it must, in the language of the statute, be performed “by virtue of a contract with the owner” of the building.

The lien claimed by the defendant in error does not include any item for labor in setting the engine up; and, it .appears, no charge was made for superintending that work. The lien is claimed only for the balance due on the purchase price of the engine, and is based, as appears from the affidavit, solely upon the written contract. That, we think, was fully performed, and the engine furnished under it, when it was delivered on board the cars at Cleveland ready for shipment, which was more than four months before the affidavit for the lien was filed.

The defendant in error, by its own delay, has failed to secure the benefit of the statute authorizing it to acquire the lien, and the court is without authority to enlarge its provisions.

Judgment reversed.  