
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan’y Term, 1893.)
    Before Baldwin, Caldwell and Hale, JJ.
    Bernsdorf & Saylor v. George J. Hardway et al.
    1. Since the act of March 7, 1887, Kev. Stat. sec. 3181, the giving of a promissory note is not a waiver of the lien of the mechanic unless there he an agreement that the note is received in payment.
    
      2. Under a contract to slate a house, the proof showing that the slater after once slating the house under and in pursuance of the original, entire and continuous contract, made such repairs as became necessary, because of injury occasioned by other workmen during the construction of the home, the time during which a mechanic’s lien may be taken, runs from the completion of such repairs.
    Error to the Court of Common Pleas of Cuyahoga County.
   Baldwin, J.

(orally.)

This case comes into this court upon appeal. The matter in controversy is between Auld & Conger, cross-petitioners, claiming to have a mechanic’s lien upon lands held by these plaintiffs, which were sold in an action for foreclosure, and Mrs. Dorranee, who was at the time at which this suit was commenced the owner of the premises.

Two defenses are made to the mechanic’s lien. One is that the mechanic’s lien was waived by the taking by Auld & Conger of the promissory note of George J. Hardway, then the owner of the property.

The other defense is that the lien taken by Auld & Conger upon the property was not taken within four months as prescribed by the statute, within which, from the performing of the labor, and furnishing of the material, the lien must be taken.

The facts as we find them are, as follows:

Hard way -was building a house and made two contracts with Auld & Conger; one for the slating of the house, and the other for furnishing certain mantels.

So far as the mantels are concerned, the testimony, although conflicting, was very decidedly in favor of the proposition that they were furnished within less than four months from the time at which the mechanic’s lien was taken ;• and there was, in the end, no substantial controversy between counsel that this was the conclusion to which the court on the facts should come. There still remains as far as the mantels are concerned, the question of the giving of a promissory note. The furnishing of the slate was clone in the latter part of September, 1890. In the latter part of January, 1891, Mr. Hard-way gave a note, and exactly for what that note was given there is some controversy, it being claimed on the one side that it was for the precise amount of the two liens claimed,and Hard-way saying it was for a general balance of account. Butwe think the testimony fairly supports the proposition that the note was given for these items in controversy in this case. The note was not paid. It was drawn payable with interest. In March, 1891, Auld & Conger, having once completely slated the house, went back and replaced the slate which had been broken or injured by the painters or other workmen who in the meantime had used the roof, and by means of which use it was injured.

It was claimed in the outset that the question of the waiving of the lien by the giving of the promissory note, was settled by the decision of the Supreme Court of our state. There was some testimony in which it was said that .the note was spoken of as being taken in payment of that lien, but that was by a witness who had no personal knowledge on the subject.

The testimony substantially was that there was no express agreement, nor were the circumstances such as to imply an agreement that this note should be considered to be in payment of tlije account, so that under the decisions in this state, that the mere giving of a promissory note for an account is not a payment for the account, we should have come to the conclusion on the evidence that, so far as that was concerned, this note was not a payment of the account for the materials furnished and labor performed.

We are referred to a case in 39 Ohio St., page 57, Crooks v. Finney, in which it is held:

“ Where a promissory note is given and received in payment of a mechanic’s claim for materials furnished and work done in erecting a house under a contract with the ownei', the lien of the mechanic is waived.”

In that case the court was compelled to come to the conclusion that the note was received in payment of the account. The plaintiff had expressly alleged that the note was given in payment of the account. The general rule in regard to whether the circumstances under which a note will be taken and considered to be in payment of the claim has been several times laid down by the Supreme Court of our state. The case in 4 Ohio St. 61, Merrick v. Boury, is a leading case. One of the syllabi reads:

u It is only by force of an agreement of the parties, that the giving of an unsealed note by the debtor will be payment of a preceding debt. The bnrden of proof is upon the debtor, who must establish the agreement clearly; and the question whether there was such an agreement, is one of fact to be determined by the jury.”

There was some slight discussion whether, even if it was in payment, it was not a waiver of the lien; but that matter, if there ever could have been any question about it, seems to be settled by the present provision of our statute. Section 3187.

It was suggested that this statute was not then in force. As a matter of fact, this statute was passed on the 5th day of March, 1887, vol. 84, page 46. 47. This decision in 39 Ohio St. was made in 1883. It looks as if the legislature, in passing this statute, had in mind this decision of the Supreme Court. But this lien was obtained in 1890 and 1891, after this act was passed. We are, therefore, of the opinion that the giving of the note was very clearly not a waiver of that lien.

A more serious question, which has taken more of our time, is whether or not the slating of the house was secured by this lien, it having been taken in March, 1890. The circumstances, as evidenced by the proof, seem to be these : That the contract between Hardway and Auld & Conger was an entire contract for the slating of the house. There was testimony that it was a uniform rule and custom where there was simply a contract that the house should be slated by the slater, that it included, not only putting on the slate in the first place, but the making of such repairs as might be necessary after the roof had been used for the purpose of the suspension of scaffolding by the bricklayers or by the painters, and that the duty of the slater was not considered as complete until the other workmen had got through with such work as would be an injury to the roof, and the slater had repaired such injury. There was no evidence in this case that there had been any improper neglect or delay in that work.

It is claimed that the completion in March of work done in September was too long afterwards to obtain a lien. But there was no evidence that this work was done later than the time at which it might properly have been done. For aught that appears in this case that house might have been in process of construction, and it might very well have been, considering the season of the year, in process of construction from the close of September to the close of March. The close of March may well have been the earliest season at which the final repairs of the slating, under that contract, could have been done.

But it is said that the fact that Hardway had given a note in January, sometime before the close of this repair work, was evidence either that the parties then considered the work as done, or that the pay was then due, and that the time when the pay was due should fix the time of obtaining the lien.. As far as the evidence is concerned, it is sufficient for us to say that the preponderance of the evidence is that it was not then considered that the work was done. It is hardly to be denied, under the evidence, that it was the duty of the slater to go back and leave the roof finally in good condition.

The lien is to be taken according to the statute, within four months from the time of performing the labor or furnishing the material, so that it is not the time when the payment is to be made that fixes the time for obtaining the lien, but the time when the work was finished.

It is intimated in this ease that Auld & Conger saw that it might be necessary to secure their lien at a time when it was more than four months after September, and had, with want of good faith, made some repairs in order to put on their lien. That claim is not borne out by the evidence. There is a class of cases that hold, where a mechanic’s lien holder has made alterations for the purpose of extending the time of getting his lien, that it will not so operate. So far as the evidence shows, what they did was exactly in pursuance of the original con- • tract between the parties.

Jones on Liens, vol. 2, section 1431 and 1436.

It is said that too liberal a rule is dangerous. In this case, by the evidence, the contract was entire and continuous ; no special time for the contract was stipulated, and the final completion of the rooi’ was within a reasonable time. There is no evidence against this conclusion. Nor is there any evidence that the repairs were not bona fide.

We do not think that under such circumstances there is any danger in our decision, and we think it supported by authority.

The best summary we have found is in Jones on Liens. Section 1431, (vol. 2,) says :

“Under statutes which provide for the filing o.f a lien within a limited time after the last work was performed, or the-last material supplied, or within a limited time after the indebtedness has accrued, it becomes material to determine whether all the work was done or all the materials were supplied under one contract or order, or under separate contracts or orders.”

Section 1436. “Where it is to be inferred from the evidence that all the articles furnished by a contract for the construction of a house or other improvement are furnished under one contract, it is immaterial that the furnishing of the articles may have extended over a long period, or that several months may have elapsed between two items of an account.” •

Cases supporting these propositions will be found in 80 Mo. 265 ; 73 Mo. 688 ; 36 Mo. 446 ; 9 Mo. 554; 16 Mo. 256; 27 Mo. 134 ; 17 Neb. 389 ; 23 N. W. Rep. 3; 14 Md. 173 ; 43 Md. 134; 40 Mo. 244. Hasard Powder Co. v. Loomis, 2 Disney 544. In Trensch v. Shryock, 51 Mo. 162, the court say, “If the materials were delivered under a continuous contract, the court had no right to exclude certain items on the ground that they were delivered at long intervals.”

Smith & Blahe, for Auld & Conger.

E, C. Schwan, for Mrs. Dorranee.

We are referred to the case of Hasard Powder Co. v. Loomis, 2 Disney, 544. That case is entirely in harmony with our views of this case, it being found (p. 557) that the later work was done under a new engagement, and not in completion of the contract under which a lien was claimed.

The decree in this ease must be for Auld & Conger.  