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Superior Court of Cincinnati.

to be $36,199.84; from this was to be deducted the amount paid by the city for advertising and inspection, the sum of $955.50, leaving the net cost of the work $35,244.33. Deducting from this the estimates allowed to that time and collected by the bank under its said assignment, and there still remained due on this contract the sum of $11,185.89. By this date, April 8, 1899, all of the interpleaded defendants herein had filed notices and claims to this balance, under the mechanics' lien law, which claims amounted to the sum of $7,782.11. To this amount the corporation counsel added ten per cent. to cover probable costs, etc., making a sum total of $8,560.33, which, under agreement with the bank, was retained by the city of Cincinnati to await the result of the litigation between the bank and the claimants; and the balance, $2,625.57, was paid over to the bank, under its said assignment. This makes in all paid to the bank under this contract the sum of $26,584.01. The bank claims to have advanced some $37,000.00 to McCarron and Dawson ; whether all on this contract or on a neighboring contract, does not clearly appear from the evidence now in this case. The bank, however, sues for only $4,694.03 and interest, thus showing that payment on the advances made by the bank were also made by McCarron and Dawson from other sources than the estimates allowed on this contract. Although the assignmentof the contract, recited above, was filed with the board of administration on the day of its execution, the evidence is conclusive that the firm of McCarron and Dawson never relinquished nor divested themselves of the actual and active prosecution and execution of the work provided for in the contract, and that no actual express notice was ever given or received by the impleaded defendants herein that said original contract had been assigned by them for any purpose whatever. It is clear to the mind of the court that none of these defendants had any actual knowledge of this assignment.

The defendant, John Mueller, had a contract partly oral, partly writ. ten, with said McCarron and Dawson, whereby and whereunder, on April 11, 1898, he began to supply said firm with sewer pipe, sewer slants and cement, to be used in the construction of said sewer; and which supplies were completed on January 19, 1899; and on which last day, therefore, payment became due; on said last day there was a balance owing to this defendant of $1,367.56. On January 25, 1899, Mueller filed with the city his sworn and itemized account of the amount and value of said materials pursuant to the mechanics' lien statute and filed a copy thereof with the recorder of Hamilton county, Ohio, and also a copy with McCarron and Dawson. The account was not disputed by McCarron and Dawson within the ten days provided by the statute. So that it follows, were there no other questions in the case, that this defendant would be entitled to be paid out of the subsequent payments that were to be made to said McCarron and Dawson under said contract.

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Bank v. Cincinnati.

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The deiendant Kemp had an oral agreement with said contracting firm to furnish sand, under which contract he began to deliver sand on April 1, 1898, and completed the same on January 22, 1899, on which day there was a balance due him of $342.80. On March 8, 1899, this defendant filed with said firm, said city and the recorder of Hamilton county, Ohio, the various notices and affidavits required by law; and the account being undisputed for ten days, he has, no other question intervening, acquired a right to be paid out of the subsequent payments to become due to said contracting firm.

As to the defendant, T. F. McClure, the conclusion the court reaches on the facts are these: On February 11, 1898, McCarron and Dawson entered into a contract with McClure and McManigal, a firm, whereby said last named firm was to sell and deliver all of the vitrified sewer brick to be used in the construction of said sewer, for which McCarron and Dawson were to pay the sum of $9.50 per thousand; that thereafter McManigal assigned and transferred to T. F. McClure, the defendant herein, and who was the other member of the firm of McClure and McManigal, all of his interest in said contract for the vitrified brick, and all his right to any money arising thereunder, the said McClure to perform the terms of said contract as if the same had been made by him; all of which was accepted by McCarron and Dawson. This contract was as follows:

We hereby propose to furnish you with what vitrified sewer brick you may need for the construction of Bloody Run sewer at $9.50 per thousand, delivered along the line of the work. Brick to be acceptable to the engineer in charge of work, you to pay the freight and wharfage as the brick are delivered and 75 per cent. of the balance per month on estimate for what brick are used and also any estimate that may be received for brick on hand, balance to be paid when final estimate is received ; brick to be counted as delivered and any culls deducted in final settlement."

Under this contract the brick were brought to this city by rail and barge between the first of April and the first of August, 1898, and were hauled out along the line of the work and piled up. The contractors resorted to the piles as brick were needed, using the last from the piles on January 19, 1899. On April 19, 1899, McClure was notified by the contractors that there were 2,280 brick, which were returned to him unused and as still belonging to him. The amount of brick claimed to be delivered under the contract was 373,528, for which, after deducting cash credits, ad a credit for the 2,280 unused brick, there is due to McClure the sum : $793.69, which he claims with interest from March 1, 1899. On d March 1, 1899, McClure filed with the city and with McCarron and wson, and with the recorder of Hamilton county, the various notices i accounts required by law, and, ten days having elapsed without

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Superior Court of Cincinnati.

objection, he claims the right of payment out of the suture payments due to McCarron and Dawson.

His right to participation, not noticing now any other question, is denied on the ground that the completion of his delivery of brick under his contract was made August 16, 1898; hence his notices and affidavits were not filed within either within sixty or ninety days after said completion of delivery ; that is, under either the old or the new mechanics' lien law, the new one being the one lately declared unconstitutional.

McClure's contention is that his delivery was not completed until January 19, 1899, the day the last brick were used by the contractors. The determination of the question depends on the proper construction of the contract between McCarron and Dawson, and McClure and McManigal, as read in the light of all surrounding circumstances. The structure into which the brick were to be placed was of some considerable length : the time in which it was to be completed was uncertain; the quantity of brick to be used could not be fixed in advance because of the nature and length of the work; it was to the convenience and advantage of the builders, and they so stipulated, that the brick should be delivered along the line of work; the quality of the brick was to be the acceptance of the chief engineer of the city in charge of the work.

Now, while the word "delivered " is used in this contract, it does not seem to me, when interpreted in connection with the foregoing circumstances, that it is entitled to the full significance of intending a change or transfer of title and ownership at the moment any quantity of the brick were placed along the line of the work. The condition that the brick inust be acceptable to the engineer in charge negatives any such construction as that. Delivery, in its legal siguificance, comprehends two notions; 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. Now, while in an ordinary contract of sale, acceptance on the part of the vendee may in effect be compelled by a suit to recover the contract price, after tender of the article sold (Shawhan v. Van Nest, 25 Ohio St., 490, 498; Cullen v. Bimm, 37 Ohio St., 236, 238), I do not see how this can be effected when there is a condition intermediate between the tender and the time for acceptance, and which must be complied with before the vendee can be even asked to accept. The delivery contemplated by the mechanics' lien law, is such a delivery as vests in the head contractor the title or ownership of the materials for which a lien or claim to priority is sought. Judge Holmes, in his notes Y to Z, star page 492 of 2 Kent's Commentaries, 13 Ed., says that the legal requirements to the passing of title are: “(1) That the chattels shall exist and be owned by the seller, at the time when the title is to pass; (2) that they shall be specified ; (3) that there shall be a mutual assent of buyer and seller to the passing of the title to the chattels so specified.. The assent must in legal contemplation exist when the title

Bank v. Cincinnati.

is to pass.

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So the passing of the title may be the subject of condition; in the case of unspecified goods no title can pass until there is an identification, and an assent of both parties to the passing of the title to the goods as identified."

The case at bar is a case of unspecified goods; the identification required was the inspection and approval of the city's inspecting engineer; until that was had no title passed in the brick to McCarron and Dawson and hence there was no completed delivery until such approval. The delivery along the line of the road was a simple tender by McClure, which was not accepted or active until the engineer had performed his duty. The evidence shows that the engineer inspected and decided as the work progressed, hence final delivery was not accomplished until final inspection, which the evidence shows was January 19, 1899. Hence the court holds that delivery by McClure was not completed until that date, and his affidavit and notices were consequently filed in time to intercept any future payment to McCarron and Dawson.

As to the claim of L. Jones & Co., the evidence shows they had a running account with McCarron and Dawson; that they furnished certain iron castings during September and October, 1898, which were used in the Bloody Run sewer, the last of these items being of date October 25, 1898; that at this time and subsequently McCarron and Daw

were also engaged in the construction of what is known as the Observatory road improvement, and that on January 5, 1899, Jones & Co., at the request of McCarron and Dawson, given by telephone, furnished to them a large iron casting or steel plate to be used somewhere not precisely located by the evidence. These defendants claim $98.00 as the balance due on said account. On March 6, 1899, they filed with the city and McCarron and Dawson and the recorder of Hamilton county, the various affidavits and notices required, and, ten days having elapsed without objecting, they claim a lien for the $98.00.

The evidence I think conclusively shows that the plate ordered January 5, 1899, could not by any possibility be needed, or be of any use or value in the construction of Bloody Run sewer, but could be of use on Observatory road; and the evidence tends to show that such a plate was used in the covering of a well hole in the vicinity of property belonging to John L. Stettinius. The evidence certainly satisfies the court, that the plate was not furnished for the Bloody Run sewer and therefore is not entitled to be charged against it. Eliminating this item from the account, and the last item of the account stands as of October 25, 1898, with the affidavit and notices of date March 6, 1899, a period f more than sixty or ninety days, whichever limitation be accepted as roper, and these defendants necessarily fail to secure any right to this ind under the statute. George H. Bruns' claim is for common brick furnished in

the conruction of this sewer, under a contract on which is due the sum of

a

Superior Court of Cincinnati.

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$5,158.06, with interest on $2,384.50, from January 29, 1898 and on $2,773.50, from April 8, 1899. His contract was completed in January, 1899, and on the twenty-fifth of that month and year, he took the necessary steps to secure his claim. The contract price was $6.00 per thousand. The objection made to this claim is that 55,000 of the brick claimed to be furnished under this contract were in reality used by McCarron and Dawson in a second sewer, known as the Rockdale Avenue sewer. This is testified to positively by McCarron and Dawson and not denied (page 104, record). Bruns himself testifies that he knew when McCarron and Dawson built the Rockdale Avenue sewer and that they took some of his brick to build it with, the quantity he did not know, and that the brick taken for that purpose were included in the lien taken on the Bloody Run sewer funds. He says he didn't furnish the brick on the work, but on the cars; that McCarren and Dawson .hauled the brick and he supposed they could haul them where they saw

The work was estimated to require 1.900,000 brick and he furnished 1,849,000. He took a lien for that amount, although some of them he knew went into Rockdale Avenue sewer. He had no contract to furnish brick for the Rockdale Avenue Sewer. Dawson sent him word once to ship faster and Bruns went down to the work and saw him, and said to him: “Dawson, you have a lot of brick up there on the street, why don't you haul them down where you need them?” Dawson said he would use them up there on Rockdale Avenue; Bruns did not object to that nor did he find any fault with him, although he knew these were his brick; never spoke to McCarren about it. He knew they did use these brick, but he did not know when they were going to use them. He learned it when he first saw them piled along the work.

This is the substance of the evidence on the point. It is an admit. ted fact that 55,000 of these brick went into Rockdale Avenue sewer and that Bruns knew they were going into it, but the brick had passed out of his control and possession then ; and it is questionable, to say the least, what he could have done to prevent it. The approximate number required in Bloody Run sewer was 1,900,000, and there is no evidence that Bruns was acting in other than good faith while he was engaged in delivering under his contract.

The question arose in Beckel v. Petticrew, 6 Ohio St., 247, between an owner and a material man directly furnishing the material, and it was held that what is now sec. 3184, Rev. Stat., extends a lien on all material in good faith furnished for the erecting or repairing of a house, etc., *

* * * notwithstanding a part of the material may subsequently be otherwise appropriated without the consent of the party furnishing it. In Esslinger v. Huber, 22 Wisc., 63, and in Bender v. Stettinius, 10 Dec. Re., 186, decided by Judge Taft, it was queried how far the rule laid down in Beckel v. Petticrew, supra, was applicable as between material men, the material of one of whom was used while another's was diverted. The

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