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Bank v. Cincinnati.

contention of the plaintiff herein, is that Bruns consented to the diversion, and that constituted a new and independent contract for this 55,000 brick.

I am unable to accede to that view of the case, for I don't think the evidence justifies it. As to whether there is any superior equity in the bank to entitle it to call for an abatement of Bruns' claim under his lien, I am also unable to see that. In the absence of the statute Bruns would have no greater claim than any one else on this fund. The material wording of sec. 3193, Rev. Stat., which protects the right of sub-contractors and sub-material men, is substantially the same as sec. 3184, Rev. Stat., and would confer what we designate a sub-contractor's lien upon a material man who had in good faith furnished material, although the same was subsequently diverted by the head contractor. And I know of nothing outside of fraud or collusion or bad faith, or something of that nature, that would postpone him. This lien being of statutory origin, a compliance with the statutory formalities vests the lien in those who are within the pale of the statute's protection; and our Supreme Court has defined those persons.

Bruns, as I read the evidence, falls within the privileged class and is entitled to be protected out of the fund to the full extent of the brick furnished by him, and without any abatement for the 55,000 brick deflected to Rockdale Avenue sewer. I confess I come to this conclusion with reluctance and much hesitation, for it does in some respects seem unjust and often may result inequitably, but it seems to me the remedy lies with the legislature.

Overshadowing, however, the claim of all these alleged lienholders, is the contention of the bank, that its assignment of February, 1898, takes precedence over all of them. In this I am unable to agree with counsel. There is no question that under the act of 1843, S. & C. 833, this claim on the part of the bank would be sound, for the decision in Copeland v. Manton, 22 Ohio St., 398, decided in 1872, is to that effect; it having been held in that case that a sub-contractor, by the service of the notice provided in said act, was subrogated only to the rights of the contractor; and where whatever was due to the contractor had been in good faith previously assigned by him to another sub-contractor, the assignment was not defeated by the service of such notice; and where, in a suit between all the parties interested, the amount due on the contract by the owner is brought into court, the assignee is entitled to have the same adjudged to him. And this, under statutes of like character with this act of 1843, was the uniform holding of the courts, it having been held in New Jersey, even as late as 1892, in Board of Education v. Duparquet, 50 N. J. Eq., 234, that an assignment by the contractor not only of monies due, but of monies to become due, if founded on a valuable consideration, was good as against the subcontractor or material man.

See Boisot on Mechanics' Liens, sec. 346–347. That was the

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Superior Court of Cincinnati.

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rule in New York, as early as 1850, the only exception allowed being that sub-contractors and material man were permitted to assert their claims and stop the funds due on the contract as against an assignment, by the contractor for the benefit of his creditors. Mandeville v. Reid, 13 Abb. Pr., 173 (1850); Otis v. Haley, 1 Daley, 338 (1863); Smith v. Bailey, 8 Daley, 128 (1878).

In May, 1863, the law in New York was amended, whereby it was provided that "no transfer or assignment of his interest in the contract by the contractor should be valid as against parties entitled to file liens under said contract against said contractor;" and in Develin v. Mack, 2 Daly, 94, it was held under this amendment, that as the contractor's engagements are based upon the amount of his contract, his workmen had the right to rest in security upon it and the means provided by law to insure its application to their demands. In other words, the contract became at once a letter of credit and a security.

The year before the decision in Copeland v. Manton, supra, which arose under the act of 1843, our own legislature had passed au act similar to the New York act of 1863, whereby, after sundry provisions with reference to subcontractors and material men, it provided, in sec. 3, that “any assignment or transfer by such contractor (i. e., the head contractor) of his contract with or claims arising thereunder against such

* * * shall “save and be subject to the claims of every such me chanic or other person so performing such work, or furnishing such materials." 68 O. L., 107.

. In 1877 the mechanics' lien laws of Ohio were revised and codified, and by sec. 16 of the act of that year, 74 O. I*, 168, a similar provision was made, that “Any assignment or transfer 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."

This provision was carried into the revised statutes of 1880 as part of sec. 3203, with the insignificant change of the indeterminate adjective, “any” into the indefinite article "an;" and it still remains as a part of said section.

Plaintiff admits the force and effect of this provision, but contends that it applies only to assignments or transfers made after material has been furnished or labor performed and cannot operate to invalidate assignments or transfers made before such materials were furnished or labor performed.

Plaintiff bases this argument on the wording of the section which says that those whose claims are to be saved are every laborer, etc., * * * who has furnished any labor, etc., his contention being that this phrase," who has furnished " indicates an intention on the part of the legislature to limit the class of protected persons. But I am unable to read the section in that way, when I view it in the light of what : 1:

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Bank v. Cincinnati.

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old law was, the evils that arose under the old law and the remedy that was sought under the new enactment.

Under the old law all assignments were valid except assignments for creditors, with the result that those whose toil and property went to improving and enriching another man's land were side tracked for the benefit of some outside creditor; and the words used in designating the assignments that should fall under the ban of the amending statutes, viz., the words "any," and "an" are sufficiently comprehensive to include all assigoments of whatever nature or character they be or at whatever time made, unless modified by the words suggested by plaintiff's counsel. But those words, it is clear from an inspection of other provisions of the lien statute, were not intended to designate or fix qualifications of time with reference to the assignments that were to be governed by the act. They are intended as descriptio personarum, as a designation of the individuals intended to be covered by the section. It is not every contractor, or sub-contractor, or material man, who is entitled to the benefit of the provisions of the lien law even though his labor or material may go in some degree into another man's building or structure. The labor or materials must be furnished under the conditions specified in either sec. 3184, or 3198, Rev. Stat., and the phrase relied upon by counsel is evidently intended to do no more than cover the persons provided for in section 3198. To give this section any other interpretation would be to construe away the protection intended by it for sub-contractors and material

The contract of the head contractor, instead of being “a letter of credit and security" to the sub

men, would in fact become but a delusion and a snare.” Secret assignments, such as in the New Jersey case, supra, would absorb in advance, and before opportunity could come to the subcontractors to protect themselves under the provision of the statute, all that was intended to be retained for their protection. My judgment is, that the statute intended to preclude all assignments by the head contractor of his contract, irrespective of the nature of the assignments or of the time when made, with reference to the work and labor performed, or materials furnished by laborers and material men. Having reached this conclusion it follows, in my judgment, that the rights of the plaintiff under its assignment must be subject to the claims of the interpleaded defendants herein, whom the court has found to have fixed their claims in conformity to law.

I have examined carefully the case of Bullock v. Horn, 44 Ohio St., 420, and Stark v. Simmons, 54 Ohio St., 435, and find nothing in either case that would, to my mind, necessarily alter the conclusion in this case. Bullock Horn would be, if anything, in harmony with the Fiews I express herein, for it as a case where the court denied the ght of the owner to set off a claim against the contractor so as to bar lien claimed by a laborer under said contractor, when such set off did t grow out of the original contract and was acquired by the owner

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Superior Court of Cincinnati.

after the labor of the lienor was obtained although before notice that the laborer's claim had not been paid.

Stark v. Simmons, supra, is in effect but an enunciation of the rule that a subcontractor's rights against an owner can be no greater and rise no higher by reason of the statute, than the rights which the contractor himself would have against the owner under his contract. In this case, at and before the original contract, the contractor was indebted to the owner in a sum equal or nearly so to the amount to become due under the contract, and the court held that the two claims, as between owner and contractor, compensated each other; there was nothing left for the sublienor to attach a claim to; and the court says that the lien law does not, for the purpose of creating a fund to which they (subcontractors) may resort, enlarge the owner's liability to the contractor, as it may be fixed by the terms of his contract, and by the rules of law relating to the subject. In both of these cases, the question arose between the owner and the subcontractor and in no wise was an assignee of the contractor involved.

While I have examined the case of Hamilton v. Stillwaugh, 5 Circ. , Dec., 324, I have not relied on it as an authority for the conclusion reached by me inasmuch as it is not certain, from the facts set forth in that case, when the assignment therein was made, with reference to the time when the work was done by the subcontractors who took out liens subsequently to such assignment and such liens were given priority. I have reached my conclusion on an interpretation of the statute as I read it. The claims allowed herein are :

John Mueller, $1,367.56, interest from January 19, 1899. Lien effective from January 19, 1899.

Henry J. Kemp, $342.80, interest from January 22, 1899. Lien effective January 22, 1899.

Geo. H. Bruns, $5,158.06, with interest on $2,384.50 from July 29, 1898, and on $2,773.50 from April 8, 1899. Lien effective January 25, 1899.

F. F. McClure, $796.69, interest from Mar. 1, 1899. Lien effective March 1, 1899.

No opinion is intended to be expressed one way or the other on the constitutionality or implied repeal of the various provisions and sections of the lien law of 1894, it not being necessary to the decision of this

case.

The one doubt I have in this decision is as to the allowance for the 55,000 brick permitted to be included in Bruns' claim. I have not been able to find an authority on the point which squarely meets it, and the only principle that I find is the doctrine of good faith in the delivery, enunciated in Beckel v. Petticrew, supra. Possibly counsel may be more successful.

A decree may be taken in accordance with this opinion.

Glesenkamp v. Radel.

PERSONALTY-SPECIFIC PERFORMANCE.
[Superior Court of Cincinnati, Special Term, 1900.]

GLESENKAMP ET AL. V. RADEL.

1. PERSONAL PROPERTY-RULE AS TO SPECIFIC PERFORMANCE.

Specific performance of contracts relating to personalty will not ordinarily be decreed. Exceptions to this rule have been made when the value of the chattel withheld was peculiar to itself, or where damages in money could be ascertained, or where the detention could not be adequately redressed by

damages. 2. RULE APPLIED-ADEQUATE REMEDY AT LAW.

Where vendee of personalty, who had disposed of same so that it could not be replevined, agreed to sign notes and give a chattel mortgage, and refuses to do so, this constitutes a breach of his contract, for which a suit for damages will lie; and the nieasure of damages would be the price of the property sold. There is, therefore, in such case, where it does not appear that vendee is insolvent, a full, complete and adequate remedy at law. B. B. Tuttle, for demurrer. Jones a James, contra.

HEARD ON DEMURRER. DEMPSEY, J.

The demurrer to the petition, I think, ought to be sustained.

Specific performance of contracts relating to personalty will not ordinarily be decreed.

Exceptions to this rule have been made when the value of the chattel withheld was peculiar to itself, or where damages in money can not be ascertained, or where the detention could not be adequately redressed by damages.

There is nothing in the facts alleged in the petition, however, to take this case out of the general rule. It is true they argue they can. not replevin because they have sold the old hearse and cannot restore it. But that is not a finality to their rights. Radel agreed to sign notes and give a chattel mortgage. This he refused to do. This is a breach of his contract, for which a suit for damages inay be had at once, and the measure of recovery would be the price of the hearse sold and delivered to him. See Stephenson v. Repp, 47 Ohio St., 551.

There is no allegation that Radel is insolvent or worthless on execution. From all that appears plaintiffs have a full, complete and adequate remedy at law.

Demurrer sustained.

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