
    Pennsylvania Company v. Mehaffey.
    
      Right of party furnishing material for construction of railroad— Such party has lien on railroad for payment, when — Definition of term "materials," used in railroad construction — Hay, grain, straw and feed, not materials, when — Sections 3208 and 3211, Revised Statutes — Law of contracts — Interpretation of statutes.
    
    1. Under Section 3208, Revised Statutes, which provides that “a person who * * * furnishes materials for or in the construction of any railroad, * * * in addition to his rights under the preceding section shall have a lien for the payment of the same upon such railroad,” the term materials, as therein used, comprehends and includes such articles only as are furnished for and to be used in the construction of such railroad. Therefore, a person who furnishes hay, grain, straw and feed to a contractor or sub-contractor for the. keep of teams employed by them in working on said railroad, is not, within the purview and meaning of this section, furnishing materials.
    2. Section 3211, Revised Statutes, while it, in terms, extends the provisions of above Section 3208, to such persons as furnish hay, grain, etc., on the order of a contractor or sub-contractor for their use or the use of persons employed by them or either of them while furnishing material or labor for or in the construction of such railroad,- does not extend or enlarge the meaning of the word materials; nor does it impose upon the railroad company a personal liability for the articles thus furnished if no lien therefor be taken and perfected.
    3. The Pennsylvania Company being engaged in the construction of certain side tracks, switches and other improvements on its railroad right of way at and near the village of Lafayette in Allen county, Ohio, caused to be posted at said village, and . at other places in said county near the place where said work was being done, written notices that the Pennsylvania Company would “protect all claims for materials, labor and board.” Held: that the claim of M. for hay, grain, straw and feed furnished by him to a contractor, for teams employed by the • latter on said work, is not a claim for either material, labor or board within the language and meaning of said notice, and, therefore, 'is not a claim which the Pennsylvania Company, by the posting of said notices, thereby assumed, or obligated itself, to protect and pay.
    (No. 9614
    Decided January 22, 1907.)
    
      Error to the Circuit Court of Allen county.
    On October 25, 1902, the defendant in error, R. Mehaffey, filed his petition against the Pennsylvania Company in the court of common pleas of Allen county, Ohio, charging in said petition, as and for his cause of action:
    “That the defendant, Pennsylvania Company, is a corporation duly created under the law, and as such corporation, before and at the time of the facts hereinafter mentioned,* to-wit, on the first day of January, 1900, was the owner and in •possession of a certain railroad and was operating the same into and through Allen county, Ohio; that at the date herein above named, and for a long time thereafter, said defendant was constructing side tracks, switches, and making other improvements to and upon its said railroad right-of-way within the county aforesaid; that such work was under the management of Overstreet & Styles, assignees of Dorwin, Young & Co.; that there was necessarily a large number of men, horses and mules employed by said Overstreet & Styles in and about the work herein alleged; that at the special instance and request of the said Overstreet & Styles, this plaintiff furnished, for the construction and improvements herein averred, material, hay, corn and other provisions for said men, horses and mules, aggregating four hundred and ninety-one dollars and thirty-one cents ($491.31) on account, a copy of which is hereto annexed and herewith filed, marked ‘Exhibit A.’ ”
    (Which exhibit shows that the only articles furnished by plaintiff, which are here involved, were hay, corn, straw and feed.)
    
      “Plaintiff further avers that for several months prior to the twenty-third day of March, 1900, the said Overstreet & Styles had failed to make prompt payments of amounts due and owing by them to the persons who had performed labor and furnished materials, supplies and other provisions upon and to the work aforesaid, whereby the prosecution and completion of the said work was .greatly hindered and delayed; that the aforementioned creditors of the said Overstreet & Styles, among whom was this plaintiff, were insisting upon the payment of their claims which were due and unpaid by the said Overstreet & Styles, and were threatening legal proceedings against them to compel the payment of the same; that thereupon and to prevent the institution of said legal proceedings and further hindrance to and delay of .the work aforesaid, the Pennsylvania Company, there being then in its possession a portion of the contract price which it was to pay for said work, caused a written notice to be posted in the village of Lafayette, Allen county, Ohio, and other places within said county and state, a copy of which notice is hereto attached, herewith filed, and marked 'Exhibit B/ ”
    (Said Exhibit B is in the words and figures following :)
    “Pennsylvania Lines West of Pittsburg.
    “Date, 3-23, 1900. Fort Wayne. Time, 5:2o P. M.
    “To Agent Pennsylvania Company:
    “Dear Sir — Post notice that Pennsylvania Company will protect all claims for material, labor and board.
    “F. A. Zollars.”
    
      “That said notice was an agreement on the part of the defendant herein to protect and pay the said creditors of the said Overstreet & Styles, including this plaintiff, whereby the defendant became liable to the plaintiff in the amount above stated.
    “Plaintiff further avers that, relying upon the said written notice and in consideration thereof, he released and turned over to the said Overstreet & Styles, some twenty head of horses and mules then in his possession, which he would have retained until his claims were paid, only for the posting of the notices herein alleged; and that after the posting of the said notice, he continued to furnish for said work further materials, hay, corn and other provisions at the request of said Overstreet & Styles.
    “Plaintiff further avers that after the posting of said written notice, and on or about the fifteenth day of April, 1900, the said defendant; by its authorized agent, in compliance with the said written notices posted as aforesaid, came to Lafayette and paid off a large number of said creditors’ claims and promised within a short time thereafter to return and pay the remaining claims, including the claims of this plaintiff; and that the plaintiff’s claim was similar to those of the said creditors which were paid by the defendant.
    “Plaintiff further avers that relying upon the said written notice and request of the said defendant, and the representation of the agent paying said claims at Lafayette, and believing that said defendant would fully perform and carry out its said agreement, he did not institute any legal proceedings to secure the payment of his claim, and refrained from in any way hindering and obstructing the speedy completion of the work aforesaid, and did not take any legal action by filing an affidavit with the recorder of Allen county, Ohio, to perfect his lien against the said defendant for materials, hay, corn, and other provisions furnished as herein stated, as the plaintiff could and would have done but for the posting of said written notices and representations of the said agent.
    “Plaintiff further avers that the claim herein set. •forth is long since due; that he has requested of the defendant the payment thereof, and that the same remains wholly unpaid; and that the said plaintiff is justly entitled to the said sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), together with interest thereon from April 11, 1900.
    “Wherefore, said plaintiff asks judgment in the sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), and interest and all other relief.”
    To this petition the Pennsylvania Company answered as follows:
    “Now comes the defendant, Pennsylvania Company, and for answer to plaintiff’s second amended petition says, it admits that it is a corporation duly incorporated under the laws of the state of Pennsylvania, and that on the first day of January, 1900, and for a long time prior to, and ever since, it has been operating the Pittsburg, Ft. Wayne & Chicago Railway as lessee, and that said railway passes through Allen county, Ohio, and that on the first day of January, 1900, it was constructing side tracks, switches, and making other improvements upon said railroad right-of-way within said county, and it denies each and every allegation in said amended petition contained not herein specifically admitted, and prays to be hence dismissed with its costs.”
    Upon the issues joined by the pleadings aforesaid, trial was had in the court of common pleas, which resulted in a verdict and judgment for the plaintiff Mehaffey, in the sum of $544.80. This judgment was subsequently affirmed by the circuit court. The Pennsylvania Company prosecutes error in this court, asking a reversal of said judgment of affirmance.
    
      Mr. S. S. Wheeler and Mr. Allen Zollars, for plaintiff in error.
    The alleged telegram was that the Pennsylvania Company “will protect all claims for material, labor and board.” The petition and the evidence without any conflict show that the appellee’s claim is for hay, corn, straw and feed, which he furnished to Overstreet & Styles, and for nothing else, except some items for rent, which he abandoned- in the court below.
    The telegram does not mention hay, corn, straw or feed. It is, that the company “will protect claims for material, labor and board.”
    Appellee has not contended that his claim is for labor or board. Plis contention has been that hay, corn, straw and feed are material, within the terms of the telegram.
    Appellee has not made a case against the company upon any ground whatever, whether legal or moral.
    
      Hay, corn, straw and feed not “material.”
    
      Dudley v. Toledo, etc., R. R. Co., 30 Am. & Eng. Railroad Cases, 236; Central Trust Co. v. Texas & St. Louis Ry. Co., 23 Fed. Rep., 703; 27 Fed. Rep., 178; Standard Oil Co. v. Lane et al., 44 N. W. Rep., 644; Oppenheimer et al. v. Morrell, 12 Atl. Rep., 307; Williams v. Bradford et al., 21 Atl. Rep., 331; McDermott v. Palmer, 8 N. Y., 383; 23 Am. & Eng. Ency. Law, 720; Industrial & Mining Guaranty Co. v. Electrical Supply Co. et al., 58 Fed. Rep., 732; Stewart Chute Lumber Co. v. Missouri Pac. Ry. Co. et al., 49 N. W. Rep., 769; Gordon Hardware Co. v. San Francisco & S. R. R. Co., 22 Pac. Rep., 406; Stichtenoth v. Rife, 6 C. C., 540; Sections 3184, 3193, 3207, 3208, 3209, 3210 and 3211, Revised Statutes.
    No consideration upon which to hold the company upon the telegram.
    Clark on Contracts, Section 73, p. 165; Manter v. Churchill, 127 Mass., 31; Mecorney v. Stanley, 8 Cush., 85; Shadburne v. Daly, 18 Pac.. Rep., 403; Tucker v. Woods, 12 Johnson (N. Y.), 189; Johnson v. Otterbein University, 41 Ohio St., 527; Bieber v. Beck, 6 Pa. St., 198; Shupe v. Galbraith, 32 Pa. St., 10; Cobb v. Page, 17 Pa. St.,469; Hoffmann et al. v. Mayoud et al., 93 Fed. Rep., 171; Smith v. Bibber, 17 Am. St., 464; Johnston v. Fessler, 32 Am. Dec., 738.
    • Appellee can not recover from the appellant for the further reason that he never in any way accepted the terms of the telegram, or made any effort to collect from Overstreet & Styles.
    
      Stone v. Rockefeller, 29 Ohio St., 625; Dill-
      
      man v. Nadelhoffer, 43 N.. E. Rep., 378; Stewart v. Knight & Jillson Co., 71 N. E. Rep., 182; Lee v. Dick et al., 10 Pet. (U. S.), 482; Miller v. Ratterman, Treas., 24 S. E. Rep., 496; Dewey v. W. B. Clark Investment Co., 31 Am. St., 623; Belmont Bank of St. Clairsville v. Beebe, 6 Ohio 498; Bosman v. Akeley, 33 Am. Rep., 447; Craig v. Parkis, 40 N. Y., 181; Brandt on Suretyship and Guaranty, 2d Ed., Section 100.
    
      Messrs. Sprague & Lippincott and Mr. I. S. Motter, for defendant- in error.
    The first three propositions, as well as the first instruction asked by the appellant and refused by the court, may be considered together, for it is contended in them by plaintiff in error, that the words “material,” “labor” and “board,” contained in the telegram upon which defendant in error bases his action, are not to be construed so as to include hay, corn and feed — these being the items making up the account the defendant in error recovered upon.
    Counsel are mistaken in their contention. “Material,” “labor” and “board” do include hay, corn and feed. It must not be forgotten that this is a claim of a creditor who has furnished certain articles to a railroad company contracting for construction,. and that he is entitled to the protection of the law which the railroad company is bound to know. What is the law? Section 3207, Revised Statutes.
    Plaintiff in error has in its brief advanced fourteen propositions by which it attempts to show error in the court below. Sections 3207, 3208, 3209, 3210 and 3211, Revised Statutes; Southerland on Statutory Construction, Section 402; Beach on Modern Law of Contracts, Section 715; Morgan v. State, 48 Ohio St., 371.
    We submit it to be the law, when a- statute defines itself, that no other construction can be given. The legislature has said that “material,” “labor” and “board” shall, in this connection, include hay and grain. We cite in support of our view Smith’s Leading Cases, Vol. 2, page 860; Palmer v. Yarrington, 1 Ohio St., 253; Hildebrand v. Fogle, 20 Ohio, 147.
    We think, under all the facts in this case, the authorities which we here cite support our view, that the notice was an absolute guaranty and for a consideration. Cambria Iron Co. v. Keynes et al., 56 Ohio St., 501; National Bank of Commerce v. Garn et al., 13-23 O. C. C., 447; Birdsall v. Heacock, 32 Ohio St., 177; Rutherford v. Brachman, 40 Ohio St., 604; Powers & Weightman v. Bumcratz, 12 Ohio St., 273; Wise v. Miller, 45 Ohio St., 388.
    Viewing the case at bar as one showing the Pennsylvania Company as guarantor of the claim of the defendant in error, we affirm that it is the clear rule of the law in Ohio, that notice to the Pennsylvania Company of the acceptance by the defendant in error, of the guaranty, is not necessary. The telegram, as posted, is an absolute guaranty of the payment of the claim, and within the rule of the case cited in 12 Ohio St., and 45 Ohio St., supra. Indeed, the language of the notice posted is free from ambiguities and uncertainties, and is positive, definite and without conditions. If this notice is construed to be an offer of guaranty, then we conclude no language could be used that would state a guaranty.
   Crew, J.

In the present case, aside from the averment in the petition (unsupported by any evidence) that the Pennsylvania Company by its authorized agent expressly promised to pay the claim here in suit, there is in this case neither allegation nor proof of any liability on the part of said company to compensate R. Mehaffey for the hay, corn, straw and feed furnished by him to Overstreet & Styles, except such as can be predicated upon, or results from, the posting by the Pennsylvania Company at the village of Lafayette in Allen county, Ohio, and at other places within said county, of the following telegram or notice, to-wit:'

“Pennsylvania Lines West of Pittsburg.

“Date, 3-23, 1900. Fort Wayne. Time, 5:20 P. M.

“To Agent Pennsylvania Company:

“Dear Sir — Post notice that Pennsylvania Company will protect all claims for material, labor and board.
“F. A. Zollars.”

The language of this telegram, when construed most favorably for the plaintiff below, Mehaffey, in terms imposes upon the Pennsylvania Company no obligation or duty other than that of protecting and paying all such claims as properly belong to and fall within one or the other of the classes therein designated, namely: claims for material, labor or board. That the claim in suit in this case was not one for labor or board is conceded. But it is insisted that within the terms of the above telegram, and within the meaning of the statutes hereinafter referred to, the hay, corn, straw and feed furnished by Mehaffey to Overstreet & Styles were materials; and that Mehaffey’s claim for the articles so furnished became, and was therefore, one of the claims which the Pennsylvania Company in said telegram expressly assumed to protect and pay. Directly the contrary view is urged by counsel for the railroad company, who contend that the word “material” as used in the telegram, and as employed in the statutes in connection with the construction of railroads, has, and had at the time said telegram was sent and posted, a fixed, well-defined and commonly understood meaning, which was and is, that the word or term when thus used is descriptive of and includes such articles only as are furnished for, and are to be used in, the construction of the road, and that it does not comprehend or embrace articles furnished or supplied for any other purpose; such as feed furnished for teams working upon the railroad, or merchandise, clothing or board furnished the. laborers employed thereon. On the trial of this cause in the court of common pleas, counsel for the Pennsylvania Company requested the.court to give to the jury the following instruction: “No. 1. Gentlemen of the Jury: I charge you, as a matter of law, that the hay, corn, feed, straw and rent set up in the itemized account of plaintiff, is not covered or included in the words 'labor, material and board/ set out in the telegram which is introduced as evidence in this case.” This instruction the court refused to give, and in the general charge instructed the jury as follows: “Now, gentlemen, * * * I might say, before closing, that if you find this telegram was posted by the authority of the company, and if you find that the plaintiff in this case furnished hay, grain, straw and other feed and materials of that character to the contractor or sub-contractor for the use of his horses upon the work, that the plaintiff would be considered as having furnished material, within the meaning of the terms of this telegram, and he would be entitled to recover.” The refusal of the court to cliarge as requested, and the giving by the court of the above instruction, are among the errors here assigned. A determination of whether or not the action of the court in this behalf was erroneous necessarily involves a consideration of the purpose and provisions of Sections 3207, 3208, 3209, 3210 and 3211, Revised Statutes. Section 3207 provides what contracts for railroad work shall stipulate, and makes the contractor liable to persons performing labor or furnishing materials stipulated for in the contract with the owner of .the road. But it makes no provision for a lien upon the road, nor does it impose any liability on the railroad company for the labor so performed or the materials so furnished. Section 3208 provides : “A person who performs labor or furnishes materials for or in construction of any railroad, depot buildings, water tanks, or any part thereof, and a person who furnishes boarding on the order of any contractor or sub-contractor, to persons employed by them or either of them, in furnishing materials or performing labor for or in construction of such railroad, depot buildings, water tanks, or any part thereof, in addition to his rights under the preceding section shall have a lien for the payment of the same upon such railroad, and such lien shall have and maintain precedence over any lien taken, or to be taken, and shall subsist for one year from the date of filing the attested account hereafter provided for; and if an action is brought to enforce the lien within that time, it shall continue in force until finally adjudicated.” It further provides and points out what shall be done in order to perfect such lien. Sections 3209 and 3210 provide how actions may be brought for the enforcement of liens, provide for notice to the contractor or sub-contractor, and the adjustment of disputed claims, and are merely sections governing procedure. Section 3211 provides as follows: “The provisions of the four preceding sections shall apply to and include any person who furnishes grain, hay, merchandise,. tools or implements, or who repairs any tools or implements, on the order of any contractor or sub-contractor, for their own use, or the use of persons employed by them of either of them, while furnishing materials or labor for or in construction of such railroad; provided, that the amount of such claim shall not exceed the wages of the person performing labor or. furnishing materials, to whom furnished, or the amount found due such contractor or sub-contractor, under the provisions of section thirty-two hundred and seven; and in every such case, the' requirements of section thirty-two hundred and■ eight, as to filing affidavits and giving notices, shall be strictly complied with; and, provided further, that the aggregate of all liens taken and perfected under sections thirty-two hundred and seven, thirty-two hundred and eight, thirty-two hundred and tenand thirty-two hundred and eleven, shall not be in excess of the actual construction contract price of the railroad company. The word ‘owner’ in these sections shall be held and considered as including any lessee, receiver, corporation, company, or persons owning, operating or managing any railroad, with whom or in whose behalf the contracts herein have been made.” While this section in terms extends the provisions of the four preceding sections to such persons as furnish grain, hay, merchandise, etc., on the order of a contractor or sub-contractor for their use or the use of persons employed by them or either of them while furnishing material or labor for or in the construction • of such railroad, it does not enlarge or extend the meaning of the word material as employed and used in the preceding sections, nor does it impose upon the railroad company any personal liability for the claims of persons furnishing the articles therein méntioned, unless a lien be taken therefor agreeably to its provisions. The sole purpose and effect of this enactment, apart from declaring the meaning of the word “owner,” is to provide for the giving of a lien upon the railroad, to the limited extent therein provided, to persons furnishing on the order of a contractor or sub-contractor as aforesaid, any of the articles in said section enumerated, the furnishing of which, but for this statute, would not entitle the person so supplying the same to have or take a lien therefor. The statute is itself, therefore, a legislative declaration that hay, grain, merchandise, tools, etc., are not materials, and that they are not within the intent and meaning of that term as employed and used in the preceding sections. All of the afore-mentioned sections are parts of an act passed by the legislature April 6, 1883 (80 O. L., 99). On April 10, 1884 (81 O. L., 126), the legislature passed an act declaratory of the true intent and meaning of the aforesaid sections, which act reads as follows: “The true intent and meaning of sections thirty-two húndred and seven, thirty-two hundred and eight, thirty-two hundred and nine, thirty-two hundred and ten and thirty-two hundred and eleven of the revised statutes of Ohio, as amended April 6, 1883, is hereby declared to be as follows: Any person or persons who perform labor or furnish material or boarding, under contract, express or implied, with such railroad company, or any of its authorized agents, for the construction of such railroad, or any part thereof, is entitled to a lien for the payment of the same upon such railroad, as provided in section thirty-one hundred ¿nd eight of the above recited act.” In the case of Industrial & Mining Guaranty Co. v. Electrical Supply Co. et al., 58 Fed. Rep., 732, Swan, Judge, reviewing and construing the above enactment, and also Section 3208, Revised Statutes, says: “By Section 3208 of the Revised Statutes of Ohio it is provided that ‘a person who performs labor or furnishes material for or in the construction of any railroad, depot buildings, water tanks, or any part thereof, to a contractor or sub-contractor, * * * shall have a lien for the payment of the same upon such railroad.’ * * * This statute gives a lien upon the railroad only for materials furnished a contractor or subcontractor, for or in the construction of such railroad, depot buildings, and water tanks, or any part thereof. For whatever other structures materials may be furnished, no lien is given under this act.

“The act of April 10, 1884, declaratory of the meaning of Section 3208, above cited, enlarges the list of those entitled to a lien, by enacting that the true intent and meaning of those sections is that ‘any persons who perform labor or furnish material or boarding under contract, express or implied, with such railroad company, or any of its authorized agents, for the construction of such railroad, or any part thereof, is entitled to a lien for the payment of the same upon such railroad, as provided in Section 3108 (?) [3208] of the above recited act/ The only effect and purpose of this latter act was to give a lien under Section-3208 as well to persons furnishing materials directly to or performing labor under contract with a railroad company, as to those who dealt with contractors and sub-contractors, who were protected by Section 3208. Neither act, however, purports to give a lien-upon a railroad for anything not used in its construction as a railroad or that of its depot buildings or water tanks.” That the general rule of construction is, that statutes giving a lien upon the railroad for materials furnished, should be limited to materials that are furnished for and to be used in the construction of the road, so as in a sense to become a part of it, would seem to be well settled by a uniform line of decisions, of which we cite the following as a type:

Central Trust Co. v. Texas & St. Louis Ry. Co., 27 Fed. Rep., 178; Dudley v. Toledo, Ann Arbor & Northern Michigan R. R. Co., 30 Am. & Eng. R. R. Cases, 236; Stewart Chute Lumber Co. v. Missouri Pacific Railroad Co. et al., 33 Neb., 29; Basshor & Co. v. Balto. & Ohio Railroad Co., 65 Md., 99; Ferguson et al. v. Despo et al., 8 Ind. App., 523; Knapp et al. v. St. Louis, Kansas City & Northern Ry. Co., 6 Mo. App., 205. Having regard, then, for the well-defined. and established meaning of the term as employed in the statutes, it must be held that the hay, grain, straw and feed furnished by Mehaffey to Overstreet & Styles, were not materials either within the meaning of the statute or the intent and language .of the telegram posted by the Pennsylvania Company, upon which this suit was predicated. And if not materials, then Mehaffey’s claim for the articles so furnished was not within the terms of the telegram, and the sending and posting of said telegram — there being no allegation of fraud or attempt to mislead thereby — created no obligation against, neither did it impose any liability upon, the Pennsylvania Company to protect or pay Mehaffey’s claim, or any claims of like character. Whether then Mehaffey, as averred in his petition, because of his reliance upon said telegram, did not, until the bringing of the present suit, institute any legal proceedings to secure the payment of his claim, and forbore the filing of an affidavit with the recorder of Allen county to perfect his lien against the railroad company for the articles furnished and supplied by him to Overstreet & Styles, becomes wholly immaterial, for the reason that such facts, if proven in the present case, would in no wise either change or enlarge his rights against the railroad company. There being then in this case no liability on the part of the Pennsylvania Company to Mehaffey, except such as can rightfully be predicated upon the sending and posting of the above mentioned telegram, and Mehaffey’s claim not being covered by, or within the terms of, said telegram, it follows that he is without right to recover in this case, and the trial court should have sustained the motion of counsel for the Pennsylvania Company — made at the close of the evidence — and should have directed a verdict in favor of the defendant company. Not having done this, but having overruled said motion and submitted the case to the jury, the court should then have given to the jury above request No. 1, as asked by counsel for the Pennsylvania Company.

Upon an application for a rehearing in this case, it is stated by counsel for defendants in error that certain of the items of Mehaffey’s claim referred to in “Exhibit A” attached to his petition, amounting to $21.1-0, are labor claims, and therefore within the express language and letter of the above telegram. And it is claimed that as to these items at least, Mehaffey is entitled to recover in this case. It is perhaps a sufficient answer to this claim to say, that Mehaffey’s petition in the present case contains no allegation that these claims, or any of them, were labor claims, nor are they so denominated or described in Exhibit A attached to said petition. Mehaffey’s claim as shown by the averments of his petition, and as exhibited by schedule A thereto attached, is one •for hay, grain, straw and feed furnished by him to Overstreet & Styles, or to other persons on their order and for which they were to pay. He does not ask, nor is he entitled in this case, to recover as owner or assignee of an}? claim for labor. There is a further, and we think equally conclusive, answer to this suggestion of counsel for defendant in error, which is, that where, as in this case, a railroad contractor gives to a laborer in his employ an order upon a third party, by which such laborer obtains from said third party goods or merchandise to the amount of such order, the transaction is one of mere novation, whereby a new debt is created and the original debt, to the extent of the order, cancelled and paid, and it can not in law be treated as an assignment pro tanto of the laborer’s claim to the person furnishing the goods or merchandise upon said order, so as to enable the latter to proceed against the railroad company under the statute as one owning and holding a claim for labor. In view of the conclusions above reached, it is unnecessary to dispose of the other questions argued, and they are not here considered. The judgment of the circuit court is reversed, and judgment will be entered for plaintiff in error upon the undisputed facts.

Reversed and judgment for plaintiff in error.

Shauck, C. J., Summers and Spear, JJ., concur'.  