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Burke v. Cincinnati.

what is not law, is obvious. All are presumed to know the law, and it is of great interest to each citizen, as well as to the public officer, that there be some authentic record to which he may resort to ascertain certainty and definitely what laws are enacted by the legislature, what control him in the daily transaction of business, and of what, at his peril, he is bound to take notice. Whatever conduces to certainty in this regard, therefore, is of great moment to every person in the state, and no rule of construction would be wise which leaves so important a matter in doubt or contusion."

The law that was passed does not appear in the secretary of state's office; it does not appear on the journals of either house; we can not set it up by parol evidence. Therefore the law as passed must fail as a law, not from defect in its passage, but because we have no certainty as to what the law is or was. The answer of the defendants, outside of the admissions, being a mere denial, in reality denied only conclusions of law. The demurrer searching the record, therefore, tests the sufficiency of the petition, which under the views here enunciated, states a good cause of action, and the defense pleaded being insufficient in law the demurrer thereto must necessarily be sustained.

CONTRACTS – LIENS.
(Superior Court of Cincinnati, Special Term, 1900.]

* FRANKLIN BANK V. CINCINNATI ET AL. 1. MECHANICS' LIEN LAW INCLUDES ALL ASSIGNMENTS.

Section 16 of the Mechanic's Lien Law of 1877, 74 0. L., 668, now sec. 3203,

Rev. Stat., providing that "any assignment or trausfer by said head contractor of his contract with said owner shall save and be subject to the claims of every laborer, mechanic or sub-contractor or material man who has furnished any labor, material or machinery toward the construction, alteration, removal or repair of any property designated in this act,” in the use of the word "any” or “an,” as it now appears, is comprehensive enough to and does include all assiguments of whatever character and whenever

made. 2. STATUTE NOT RESTRICTED BY “Who has FURNISHED."

The words “who has furnished," as used in said section, are not intended to

designate or fix qualifications of time with reference to the assignments that

are governed by the act, but are intended as descriptio personarum. 3. LIENS VALID AGAINST PRIOR ASSIGNMENT.

Uuder the foregoing rules the liens for material furnished contractors with a

municipal corporation in the construction of a sewer are not defeated or postponed by an assignment by the contractors of their claims against the city to a bank, to secure advances to carry on the work, although such

assignment was made prior to the time when the liens were acquired. 4. MATERIAL MAN-LIEN VALID THOUGH MATERIAL DIVERTED.

A party who, in good faith, furnished 1,849,000 brick under an estimate that

1,900,000 would be required for a certain sewer improvement, the brick being delivered on the cars and hauled by the contractor to where they were needed

Affirmed by the general term, November 27, 1900, "on the reasoning of the opinion of the court below.”

35 S. & C. P. Vol. 10

*

Superior Court of Cincinnati.

for the work, is entitled to a lien for the full amount of his claim, although 55,000 of the brick, after they had passed out of his possession, were diverted and used in another improvement; and although, under the circumstances

stated, he knew that the bricks were so used and made no objection. 5, DELIVERY, IN LEGAL SIGNIFICANCE.

Delivery, in its legal significance, comprehends two things: a tender of the

goods on the part of the vendor and an acceptance on the part of the vendee.

When these two acts concur, title is transferred. 6. DELIVERY CONTEMPLATED BY MECHANICS' LIEN LAW.

The delivery contemplated by the Mechanics' Lien Law, is a delivery which

vests in the head contractor the title or ownership of the materials for which

a lien or claim to priority is sought. 7. DELIVERY WITHOUT ACCEPTANCE-INCOMPLETE.

The delivery of brick along the line of a proposed improvement, where the

time in which it was to be completed was uncertaio and the quantity of brick to be used could not be determined in advance, and where the brick were received subject to approval by the city engineer, amounts to a simple ten. der of the material and the delivery, from which the statute will run against the lien of the material man, is not complete until the material is accepted

by the city engineer. 8. RULE AS TO INVOKING INTERPLEADER.

The subject of an action is not necessarily the specific amount sought to be

recovered by the plaintiff; it is the amount due on the contract itself. Therefore, where there are conflicting claims to the whole amount due, which ren. der it unsafe for the party liable to determine whom to pay, he may avail himself of the statute of interpleader, even though plaintiff claims only a

part of the amount due under the contract involved. 9. PETITION IN ACTION WHERE INTERPLEADER IS DEMANDED.

A petition in a suit by a bank as assignee of contractors to recover money due

from a municipal corporation, in which the corporation has filed an affidavit for interpleader, is not subject to demurrer by one of the impleaded defendants, holder of a mechanic's lien, on the ground that such petition does not staté a cause of action against him. Such suit, being originally a simple ac. tion at law, was, by the action of the city in demanding interpleader, converted into an equitable action wherein all parties are actors and all parties

defendants, seeking rights in a common fund. 10. DEMURRER OVERRULED.

Where, in such a case, there is nothing in the petition which shows any claim

against defendant to the fund in controversy, the court, on his demurrer, has nothing to pass upon, but must overrule the demurrer and leave the question

to be settled upon future pleadings and the evidence. 11. PROPER METHOD OF PLEADING DISCLAIMER.

The proper way to set up the fact that the subject of plaintiff's action is not

claimed by one who has been made a defendant by interpleader, is by answer,
disclaimer or failure to plead at all, not by motion to set aside or modify the
order of interpleader. Such order may be inade by the court on the affidavit
of the principal debtor and it is not for any alleged claimant to question that
order.
Burch & Johnson, for plaintiff.
A. J. Cunningham and L. P. Bane, for Bruns.
Corporation Counsel, for Cincinnati.
Gorman & Thompson, for Mueller & Kemp.
F. F. Dinsmore, for McClure.

Bromwell & Bruce, for Jones & Co.
DEMPSEY, J.

Plaintiff filed its petition in this case originally against the city of Cincinnati and McCarron and Dawson, a firm, alone, wherein it averred

Bank v. Cincinnati.

that on January 11, 1898, the said city entered into a contract with said firm for the construction of the Bloody Run sewer; and that on February 21, 1898, said firm assigned and transferred to said plaintiff all their right, title and interest in said contract, in consideration of which plaintiff was to make certain advancements to said McCarron and Dawson; that said McCarron and Dawson have completed said contract and the same has been accepted by the said defendant, the city of Cincinnati, and a final estimate issued by the engineer of said city of $11,185.89, as the amount still due under said contract; that on April 21, 1889, said city paid plaintiff the sum of $2,625.57, but refused to pay the balance of said estimate or any further sum to plaintiff; that there is still due to plaintiff from said city the sum of $4,694.03, which said city refuses to pay, and for which said plaintiff prays judgment with interest from April 20, 1899.

The city of Cincinnati, through its corporation counsel, filed an affidavit in this case under sec. 5016, Rev. Stat., wherein it averred that the subject of the action was money in its hands and that without collusion with the defendants, McCarron and Dawson, the various other defendants make a claim upon said fund and such other averments as are required by said section, and then prays that said claimants may interplead and settle their claims among themselves.

Thereupon an order was made that upon payment by said city of the sum of $8,560.32, the amount claimed in the petition to be still due from the city to the plaintiff and the other claimants to the fund, within twenty days from the date of the order, the said city should be discharged from liability to either the plaintiffs, McCarron and Dawson, or any of the other parties, in respect to said sum so paid. It was also ordered that a copy of the order be served on all of the averred claimants, requiring them to appear before this court on or before July 1, 1899, and maintain whatever claim they may have to said money, or relinquish the same.

It will be observed that the order does not specially designate that this money shall be paid into court; evidently an omission in drafting the same, for on June 19, 1899, a second order was made reciting that said city had paid to the clerk of this court said sum of $8,560.32, in accordance with the former order and discharging it from all and future liability to the parties in regard thereto.

All of the alleged claimants answered except the firm of McCarronand Dawson.

Previous, however, to filing an answer, the defendant, George H. Bruns, filed a motion herein and two demurrers, which, by consent of counsel, are to be disposed of before considering the case on the facts.

One demurrer is to the petition of the plaintiff, for the reason that it does not state facts sufficient to constitute a cause of action against

Superior Court of Cincinnati.

him; nor to entitle it to relief sought and prayed for against him; nor to require him to interplead to the petition.

Of course this demurrer must be overruled, for the petition was not framed against this defendant at all, nor is any relief prayed by it against him; nor does nor did plaintiff ask this defendant to interplead. Plaintiff's action was a simple action at law, which, involuntarily on its part, and by the action of the city of Cincinnati, was converted into an equitable action, where all parties are actors and all parties defendants; and where each is asking the enforcement of rights in a common fund.

The second deinurrer is to the petition also, on the ground that it does not state facts sufficient to constitute a cause of action against the city of Cincinnati nor this defendant, nor any right to recover any part of said fund, upon which this defendant (Bruns) levied his mechanic's lien.

Waiving the question whether this defendant has any right to test the sufficiency of the petition against the city, it is sufficient to say that it does state a cause of action against the city. There is nothing in the petition which shows any claim against this defendant, to the fund in cont oversy, and of course, in the absence of such averments, on demurrer, the court has nothing to pass upon, but must overrule the same and leave the question to be settled upon future pleadings and the evidence.

The motion filed is to set aside or modify the entry of the order of interpleader and six reasons are assigned. The first is because the subject of the plaintiff's action is not claimed by Bruns. The proper way to set that up is by answer, or disclaimer, or failure to plead at all. The order may be made by the court on the affidavit of the principal debtor, the one holding the fund, and it is not for any alleged claimant to question that order.

The second ground is because the entire amount of plaintiff's claim is $4,694.03, which is the entire value of the subject of this action, and therefore the city could not ask for interpleader for a sum greater than plaintiff's claim, viz: $4,694.03.

The language of the statute is that if the defendait makes affidavit that, “ a third party

has or makes a claim, to the subject of the action, etc.;" the subject of the action is not necessarily the specific amount sought to be recovered by the plaintiff; it is in reality the amount that is due on the contract itself, a part of which amount plaintift claims himself. Plaintiff alleges the whole amount due, and prays a judgment for part of it. We see no reason, where there are conflicting claims to the whole amount due, which render it unsafe for the party liable to determine whom to pay, why he may not avail himself of the provision of this statute even though plaintiff claims a part only.

The third, fourth and fifth grounds of the motion being confined to allegations of inadvertence on the part of the court in making the order, and in releasing the city from liability, it may be said, inasmuch as I

Bank v. Cincinnati.

made the order, that they were all made in accordance with the statute and upon the evidence that the statute authorized.

sixth ground is really a motion to order the clerk to repay the money to the city. The motion in general is overruled, for want of legal merit on all of the grounds alleged. As was stated before, Bruns filed an answer and cross-petition which, with the evidence thereon, was to be considered in case the demurrer and motion was overruled. A special reply was filed to the answer and cross-petition of Bruns; and one single reply, with several counts, to the answers and cross-petitions of the other claimants. It will not be necessary to set forth these pleadings at length, as the facts necessary to the decision of this case will sufficiently appear in the conclusions on the evidence made herein.

From the evidence it appears that the said firm, McCarron and Dawson, did, on January 21, 1898, contract with said city for the coustruction of said sewer, that they completed said contract, and that at the begining of this action there was the sum of $8,461.32 still unpaid by said city on said contract. The petition in this case was filed April 26, 1899. In order to carry on this work it was necessary for McCarron and Dawson to have money, and in order to procure the same they entered into an arrangement with the plaintiff to furnish it, and, to secure such advances as might be made, executed and delivered to plaintiff the following instrument in writing on the date specified therein, viz:

“In consideration of certain advances to us made by the Franklin Bank we hereby transfer and assign to the said bank as collateral security all of our right, title and interest in the contract entered into by us with the city of Cincinnati on January 17, 1898, for the building of what is known as the Bloody Run sewer.

In witness whereof we have hereunto subscribed our names, this 28 February, 1898.

MCCARRON & DAWSON,
FRANK McCARRON,
WM. C. DAWSON.

This instrument was filed with the board of administration of the city of Cincinnati on the day of its date. At the time of the execution, delivery and filing aforesaid of this instrument, none of the others interpleaded defendants herein had furnished any material to McCarron and Dawson, or were entitled to any claim on any funds that might have been due to said firm under their said contract.

In pursuance of this agreement or assignment, the said bank advanced, from time to time, moneys to said firm of McCarron and Dawson, and McCarron and Dawson in turn made various payments to the bank, among which payments are included all of the partial estimates allowed by the city of Cincinnati as the work progressed, and which on April 8, 1899, aggregated $24, 058.44. The total cost of the work was

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