Opinion
06-22-1893
MARCUS SAYRE CO. v. BERNZ.
Elias T. Morrow, for demurrant. Johnson & Pilch, for complainant.
Bill by the Marcus Sayre Company against Otto Bernz to compel the payment of a certain order drawn on defendant, or to secure the payment into court of the amount due under a building contract. Defendant demurred to the bill. Demurrer overruled.
Elias T. Morrow, for demurrant.
Johnson & Pilch, for complainant.
BIRD, V. C. The complainant holds an order for $400, drawn by a building contractor upon the defendant, who was the owner. The object of the bill is to compel payment of this money, or to secure the payment of the whole amount due upon the contract, into this court. The bill alleges that the order was presented to the defendant, and that he accepted it by first writing over his name, "If the work should be approved by myself and the architect." The bill further alleges that the contractor left the work unfinished, but that the amount of work necessary to complete it was but slight. It also alleges that the contractor gave this order upon the 29th day of August, 1892, upon which day it was so accepted, and that on the 3d of September the contractor abandoned the work, and departed from this state, and that his whereabouts are entirely unknown to the complainant. It is likewise stated that the complainant urged the owner to complete the building according to the contract, and that in February last he served written notices upon him, requiring him to complete the building according to the contract, and to pay the balance which might remain due in his hands into this court for the benefit of those who are entitled thereto, but that he has wholly neglected so to do. It is charged that this conduct Upon the part of the defendant is fraudulent, and that his refusal amounts to a fraud upon the complainant.
The first cause of demurrer goes to the allegation of fraud, and insists that it does not sufficiently appear upon the bill that the defendant is liable to any such insinuation. It is my clear judgment that in this respect the demurrer cannot be sustained. The bill shows that the houses are very nearly completed; that the defendant has taken possession of them, and has for some time enjoyed the rents and profits of them; that under the contract it was expressly provided that he should have the right to finish the same in case the contractor neglected so to do; that he has been requested by the complainant, who had an interest therein, to comply with the terms of the contract in this respect, and that he has failed for several months to specifically perform his promises. It seems very plain to me that when the mechanic's lien law is taken into the account, all persons who supply labor or materials to the building mentioned in such contract have an interest therein which will justify them in claiming the aid of this court, and that, when it becomes necessary for them so to do in order to protect their rights, he who willfully refuses toperform his part of such a contract is clearly guilty of fraud in the eye of the law.
The next cause assigned for demurrer is that there is no allegation in the bill that the defendant ever gave the three-days notice required by the contract, to the contractor, that he must complete the said building according to the contract, and, in case he failed so to do, that the defendant would then proceed to complete the building; nor that the defendant has had an opportunity to make such service. This is founded upon the allegation that the contractor abandoned the work on the 3d of September, and that his whereabouts have since been unknown, so that it appears by the bill that it is impossible for the defendant to give such notice. There is no foundation whatever for objection in this. Clearly if, under such a contract, the owner could take ad vantage of the absence of the contractor, and offer it as an excuse for not finishing the work when it was so nearly completed as in this case, and refuse to pay all laborers and material men, the law would work an unheard-of mischief. Besides, the contract expressly states "that, if the contractor at any time refuses to supply material or workmen, the owner may supply the same, and complete the work according to the contract." Without such provisions the court would have no difficulty infixing the rights and liabilities of the respective parties, but with such provisions there is not room for even hesitation, say nothing about discussion.
It is also urged that the bill is defective in that it does not expressly declare that the time has as yet arrived within which the contractor was to finish the contract. The bill shows that the contractor earned his first and second payments, and that they were paid, and that he also earned the greater part of the third and last payment; that, upon the same day upon which the said order was given and accepted, the complainant, at the request of said contractor, released all his rights and interests in the said buildings; that on the 3d of September the said contractor left for parts unknown, and that at that time he had almost, but not quite, completed the buildings according to his contract; and that the said defendant has taken possession of said houses, has leased the same, and has collected the rents; and that when the complainant again demanded the payment of the said order, after the defendant had taken possession of the buildings, the defendant refused to pay the same, and gave as a reason therefor the fact that the contractor had not finished the said buildings according to the contract and specifications. In my judgment, this brief outline of the statements of the bill forms a satisfactory answer to the last ground of demurrer, and supplies that certainty to a common intent which is essential to constitute good pleading. It shows that for more than five months before the bill was filed the contractor, had abandoned the contract, and that at that time the buildings were almost, but not fully, completed, and that the defendant was requested to pay the amount of the order which he had accepted, and that he refused to do so, and assigned as a reason for his refusal that the contractor who gave the order had not completed the buildings according to the terms of the contract, showing not that the money, under the terms of the contract, in point of time, with reference to any particular date, was not yet due, but that it was not due because the contractor had failed to complete the contract according to the terms thereof; showing that he was in default. Now, it thus appearing that the contractor was in default, and it also appearing, as above stated, that when the contractor fails to supply material or workmen for the completion of said building the owner has the right to do so, then, clearly, it is the duty of the owner to perform the work which he has by his contract obliged himself to perform.
Noris there substantial ground of objection to the bill because of the want of an allegation that the buildings were completed to the satisfaction of the architect. The hill expressly meets this requirement of the contract, and avoids it by first stating that the buildings are not completed, and showing that according to the terms of the contract it is the duty of the owner himself to complete them. As above intimated, if the neglect of the owner, under such circumstances, should be supported by the courts, it would work a perpetual bar to the just claims of every workman and material man who relied upon the supposed beneficial provisions of this statute.
The insistment that the complainant has a complete remedy at law is not only answered by the above paragraph, but also by the fact that the order was conditionally accepted, which condition, as above clearly appears, has not yet been overcome. See, also, authorities in the case Bradley & Currier Co. v. Bernz, 26 Atl. Rep. 908, (just decided.)
The last cause of demurrer is that the contractor has not been made a party. It is insisted that he has an interest in the fund in hand; but he has no interest whatsoever in so much or it as is necessary to satisfy the order which he has given. To that extent he has disposed of his interest The complainant asks for nothing beyond that. The rest of the fund the complainant does not propose to meddle with, but by its bill proposes to leave that to the care of the defendant. The bill plainly admits the rights of the defendant; anil the law has fully provided for the protection of the defendant. The defendant is presumed to know the extent of his rights; let him discover by proper pleadings to the complainant and to the court, and, in case that it appears that others have equal or superior rights to this fund with the complainant, the bill provides for such contingency by praying that the whole fund may be brought into this court. It hardly needs the suggestion that the defendant by his cross bill can show a completion of this contract according to the terras thereof, availing himself of every right thereunder, and so working out a complete settlement of all the questions which arise under the mechanic's lien law The demurrer should be overruled, with costs.