
    BOYD M. SMITH AND S. H. WIMSATT vs. ROBERT M. JOHNSON AND WILLIAM DOWELL.
    In Equity. —
    No. 3770.
    I. A notice of a mechanic’s lien signed -with a copartnership name, instead'of with the individual names of the partners, is not invalid for that reason.
    II. A mechanic’s lien for materials furnished upon a joint contract with a copartnership will bind the interest of one of such parties who alone has title to the real estate upon which the building was erected.
    III. The mere transfer of a promissory note to the material-man will not release his lien, unless the same is paid at maturity, or unless it is taken in payment of the account.
    IV. The lien is not invalid, although it does not cover all the land connected with the building to which the owner has a title-deed.
    STATEMENT OE THE CASE.
    This was a bill in equity under tbe statute to enforce a mechanic’s lien. . The notice of lien was filed in the clerk’s office March 19,1874, and was signed with the firm-name of the complainants, Smith & Wimsatt, without mentioning the individual names of the partners. They were, however, described in the bill of complaint by their Christian and surnames as doing business under the partnership name signed to the notice of lien. The answer of the defendant Johnson, who alone appeared in the case, avers no objection to the notice on this account, but it was contended at the hearing that the complainants had no right to file a lien in the company name only.
    The bill of complaint designates the property sought to be subjected to the lien as 11 situated on northeast corner of square No. —, fronting 50 feet on Seventh street and 90 feet on I street southwest,” and one of the exhibits in proof is a conveyance of the land in question to defendant Johnson in fee-simple, and describing the land as extending 99 feet on I street, instead of 90, as stated in the bill of complaint.
    The defendants were partners, doing business under the firm-name of Johnson & Dowell, and occupied the premises as a machine-shop andfoundery; and Dowell testifies that the property, as he understood, was bought for the firm, and that Johnson informed him, as soon as his share of the profits amounted to one-half of the cost of the building, he would deed it to the firm; but there is no agreement in writing, to this effect, and Johnson contends that he has title alone to the land, and that Dowell never had any such interest therein as would authorize the complainants filing a lien against him, as he was not the “ owner ” of the land. There is some evidence tending to prove that some castings made by the firm were sold to pay for work done on the building, and that sometimes the men employed in the shop worked on it during the period the repairs were being made.
    The complainants furnished lumber for the purpose of enlarging the machine-shop and- foundery, and the court have come to the conclusion that the lumber for this purpose was furnished in pursuance of a contract with the firm of the defendants.
    At an interview between the parties as to the amount due the complainants, the defendant Johnson indorsed to them the note of W. H. Adams for the sum of §180, which has been protested and never paid, and there is some conflict in the testimony whether this note was taken in payment absolutely; but the court was of opinion that the transfer of the note was not to operate as a release, unless it were paid at maturity.
    The cause was referred by the court below to the auditor to state the account. His report was excepted to by defendant Johnson. The exceptions were overruled, and the amount found in favor of complainants was decreed to be a lien upon the. property in question. Johnson has appealed to the general term.
    
      Francis Miller for complainants
    
      Woodbury Wheeler and Philo B. Stilson for defendant Johnson.
   By the Court:

As to the notice of lien being in the firm-name only: This would be clearly insufficient in a declaration in an action at law, but we do not think that parties intending to assert a lien under the statute should be held to the strict rules of pleading in giving notice thereof. Of course it would be more regular to describe the parties by their names, as in the case of deeds and other legal proceedings, but we do not think that there is such uncertainty in the present case as would justify us in declaring the lien invalid for that reason. As to the objection that the title to the real estate was in Johnson alone. The complainants had a right to establish their account against both defendants, for the contract for the lumber was with them jointly. There is some testimony tending to show an equity in Dowell, and the lien would only bind the land to that extent, as far as he is concerned. Even if it should turn out that he had no interest, the lien would still be valid as against Johnson’s estate, since he was jointly liable for the debt, and all his right, title, and interest w ere bound by the lien and could be sold in satisfaction of the judgment. If the materials had not been furnished upon his contract and used for the purpose of enlarging his property, the latter could not be subjected to the lien, nor could he be made a party to the proceeding. We think the views of the defendant Johnson on this point are erroneous, and therefore overrule them.

With respect to the transfer of the Adams note, we do not think that in the conflict of the testimony we can infer that it was the intention of the parties that it should release the lien unless paid, and as it has not been paid, the defendant is not entitled to have it credited in the account.

There is nothing in the point that the conveyance to defendant Johnson shows that nine feet of the land on I street is not included in the lien.

Judgment affirmed.  