
    Frank H. Shall, as Sole Executor, etc., of George W. Shall, Deceased, Respondent, v. The Old Forge Company, Appellant, Impleaded with Others.
    
      Foreclosure of mechanic's lien—findings of referee unwarranted by evidence—erroneous admission of evidence.
    
    This is an appeal from a judgment of the Supreme Court, entered in Herkimer county clerk’s office on the 30th day of January, 1905, on the report of a referee, in favor of the plaintiff, for §2,038.36, and for the foreclosure of a mechanic’s lien.
   Nash, J.

This action is for the foreclosure of a unechanic’s lien the property of the defendant, The Old Forge Company. The notice of lien was filed by Charles D. West for labor performed and materials furnished in the erection, alteration and improvement of a hotel and other buildings of the company in the year 1896, and subsequently assigned by West to George W. Shall, the plaintiff’s testator. In December, 1895, the four directors of the company, Adams, Garmon, Crosby and Snyder, with two of the stockholders, J. J. and N. B. Gilbert, met at Bagg’s Hotel in the city of ITtica, and had a talk on the subject of improving the property of the company at Qld Forge, plans for which had been procured. It was agreed at this meeting to employ West as carpenter and builder to do the work, and besides his own labor to furnish teams and tools for carrying on the work.. There is no question as to any of the items of the claim, as found by the referee, except the allowance of ten per cent on the payrolls in addition to the-per diem of five dollars a day for the labor of West and four dollars a day each for his teams. The testimony on behalf of the plaintiff as to the employment and compensation of West is that of Adams, who is a brother-in-law of West, Alexander M. Briggs, whose wife was the tenant of the Old Forge Hotel, and West. The testimony of Adams is that at the meeting at Bagg’s Hotel the plans were discussed, and they said, referring to the persons present, “ Mr. West should go on and do the work. They all agreed, to that. They asked me what West’s price would be, and I told them §5 and a commission. I can’t tell which individual asked that. One of them asked what Mr. West’s compensation would be, and I said $5 and 10# on the labor account. * * * Mr. West was then called in the room. I have told all I recollect before Mr. West was called in. When I told them the price, T said he was to furnish all the tools-and they were to pay the freight out there and back on the tools. After Mr. West came in the room lie explained the plans, and they asked him what he thought it would cost to do it. * * * West said it would not cost less than §10,000 to do it * * * as the plans indicated. He was then told to go on and prepare to do the work. * * * I can’t tell who said that. * * * After West came in the room I don’t remember as anything further was said about West’s compensation.” Before that, he says, West had told him he would want five dollars and ten per cent on the labor account for the use of his tools. West says he was at. the hotel but was not present at the meeting except when called in to explain the plans; that they had been together one and one-half to two hours before he was called in. He says: “I went into the room and saw these men, and the plans spread out. Mr. Oroshy wanted to know about the plans, and I explained it to him. Then they wanted to know the approximate cost of the building, and 1 gave it to them.” Alexander M. Briggs testified: “I was in the room on that occasion lj- or 2 hours. That was about the time consumed in that talk. I think I went in with Mr. West, and he was there all the time I was there.” On behalf of the defendant Judsórt J» Gilbert testified: “ My recollection is Mr. West was in the room several times that day, and Mr. Briggs was during the last of the meeting.” Nelson R. Gilbert testified: “ Q. Do you recollect that Mr. Adams made a statement at that time on the subject of Mr. West’s compensation? * * * A. He did, to the best of my recollection. Q. State what it was?- A. I can’t state how much a day it would be. I can’t tell how much. Mr. Garmon protested there, or that same' day, that it was too much. Mr. Adams did not, in my hearing, say that Mr. West would have 10% or any percentage on the payroll for the work. Mr. West ■was in the room at one time during the meeting. = Mr. Briggs was in later, I think. - While Mr. West was in the room I can’t say anything was said about West’s compensation. When Mr. Briggs came iñ I think the matter of West’s compensation had been disposed of.' Wé talked with him on other matters. I don’t recall that I left the room before the rest did.” Snyder testified: ‘ ‘ Q. What was said at that meeting upon the subject of Mr. West’s compensation, and by whom? * * * A. Mr. Adams said he had arranged with West to take charge of the work, and I think I asked Adams: * What have you got to pay West for the work'? ’ Adams said $5, his regular price. Mr,- Garmon instantly stated that: ‘ That is too darned much for any carpenter.’ I stated that Mr. West is a first-class man,, and that is not too much. Mr. J. J. Gilbert said as l.did. Mr. Adams, Mr. Gilbert-and I. all said West had worked for us at that rate. There was nothing said that Mr. West was to"'receive 10% or anything on the payroll for the labor. There was nothing said about employing West on these terms. No other terms were stated. Notiiing was said, to my knowledge, on the subject of compensation while West was in the room. There was nothing said on the subject of Westis compensation, while Briggs was in the room, that I heard.” Crosby testified: “The meeting lasted from about three o'clock to about five . o’clock in the afternoon. I was there during the whole time. - That was the meeting where it was determined to make the improvements according to the plans of Mr.’Hang. * * * Mr. Garmon asked Mr. Adams what it would cost to have Mr. West take charge of the work, and he replied $5 per day. Mr. Garmon objected that we could get good carpenters for less than that, and in reply to that Mr. Adams suggested that Mr; West had some tools that other carpenters would not have, and it. would be better to have a man that had all those things. * * * There was nothing said by Adams or any one else at that meeting or any other meeting about West being employed at $5 a day and 10% commission. I don’t remember West was in the room until after we adjourned. I don’t t-hinlr anything wgs-said when he was present on the subject of his compensation. -Mr. Briggs was in the room a short time before or after the talk about Mr. West. I. am not certain which. He was not in the room at any time when there, was any talk about West’s compensation." Garmon testified: "I was at the meeting at Bagg’s Hotel spoken of by the witnesses. At that meeting Mr. Snyder or Mr. Adams said, I propose that Mr. West have charge of the work, and made the statement, that he was a very competent man and skilled in building. I asked what pay he would have. The reply was §5 a day. Mr. Adams said that. I said, it’s too-much, that I could hire dozens of men to take charge of a plain building like that for a good deal Jess. I think Mr. Adams and Mr. Snyder said ho was a competent man and could get more work out of men than anyone we could' get, and was a man of force and vigor, etc. I think it wms Mr. Snyder who said he did have some tools,. There was nothing said at that meeting abgut paying Mr. West 10% on the payroll in addition to the §5 a'day. I do not remember Mr. West being in theroom, but I did not know him then and he might have been. Mr. Briggs was not in the room when there was any talk about West’s compensation at .all.” . The referee found, as testified to by West, that his wages at §5 a day amounted to- $720.50, and his team’ work amounted to $760,80. In the notice of lien filed by West, which was duly verified, he included ten p.er cent commission in-, the amount of his per diem wages -and team work. On the trial these items were abandoned as a basis of his claim for the ten per cent commission. We. are o.f the opinion that upon all of the evidence in the case relating to the employment Of West, the finding that the defendant promised and agreed to pay in addition to five dollars per day as wages, ten per cent of the amount of the payroll for the work,. is erroneous. The plaintiff’s case in this behaif rests wholly upon the testimony of Adams and Briggs; West, himself,-did not have anything to say, and nothing, was said in his presence at the meeting at Bagg’s Hotel as to his-compensation, and in his notice of lien he made a verified claim for a commission to which confessedly lie was not entitled. Adams, Briggs and West are radically at variance as to what occurred at the Bagg’s Hotel meeting. West says there was nothing said on the,subject of his compensation when he was in the room. Adams says he was asked what West’s compensation would be and he said five dollars and ten per cent on the labor account. Briggs says Garmon asked Adams what West charged, and that" Adams turned around to West and said: “What will you ask a day to go up to take charge of this work,” and West said he wanted five dollars a day and ten per cent of the men’s wages for the use of his tools and looking after it. Adams says he had a talk with West before the meeting in which West said he would want five dollars and ten per cent on the labor account. West says they had been together one and one-half or two hours before he was called into the room. That he was in there perhaps twenty minutes when he retired from the room and they remained. Briggs says: “ I was in the room on that occasion lj- or 2 hours. * * * I think I went in with Mr. West and he was there all the time I was there.” These contradictory statements as to the essential facts cannot well be regarded as outweighing the positive statements of the two Gilberts, and the three other directors, Snyder, Crosby and Garmon, to the effect that West’s compensation was fixed at five dollars per day without any agreement for' a commission. Both Adams and West were permitted to testify, under defendant’s objection and exception, that West had done work on buildings for Adams previous to the employment of West by the defendant, for which Adams had paid him five dollars per day and ten per cent on the labor. . On the cross-examination of defendant’s witness Snyder, the plaintiff was permitted, under objection and exception, to prove that for work done by West, the Saxony Knitting Mills paid him for his work five dollars per day and a percentage in addition; the witness did not remember whether it was five per cent or ten per cent. West and Bertram F. Adams, who acted as paymaster for the defendant, were permitted to testify, under defendant’s objection and exception, that while B. F. Adams was paying off the help on one occasion he had a talk with West about his compensation, in which Adams says he asked West if he did not get a percentage on the men. West says he said: “ Charley, how is it about the percentage, don’t that come in now?” and he, West, said, “No, let it go till we get through.” These rulings were erroneous and doubtless the evidence influenced the referee in his finding that the defendant promised and agreed to pay West a commission of ten per cent of the amount of the payroll for the work. The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event upon questions of law and fact. All concurred. Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.  