Dickinson College v. Church

The opinion of the Court was delivered by Rogers, J.

The 27th of April 1837, the trustees of Dickinson college entered into a contract for the erection of a grammar school, in the borough of Carlisle. The contractor agreed to erect the building and furnish the materials, for the sum of $5800, all of which has been paid by the trustees. It appears that Myers was a contractor, not only for that building, but for others in the neighbourhood; that he procured his materials in the first place, from Church & Crist, aiid after the dissolution of their partnership, from Robert R. Church, the plaintiff. The price of the materials not being paid, the plaintiff files a claim against the building, for the sum of $1077.34, which he alleges to be due. The account begins the 22d of January 1837, and ends the 13th of November 1837; and is opened in the books of Church, as a charge against the contractor alone, without any allusion to the college, except in the last item. The whole amount of the account, is $1477.34, on which Myers paid $400, which is credited generally, the 26th of June 1837. The suit is brought against the college and the contractor, for the purpose of recovering the money due, as for materials furnished by the plaintiff on the credit of the building. It is not denied that the lumber was purchased by the contractor, but it is denied that it was furnished on the credit of the building. The defendants allege that they were sold on the personal responsibility of the contractor, who at the time, as was well known to the plaintiff, was engaged in the erection of other buildings. That the college is not chargeable with part of the account, was admitted at the trial, and indeed, it would require more than ordinary hardihood to deny it, as it was in proof that the account commenced the 27th of January, and that the contract for the erection of the grammar school, was not made until the 26th of April following. All this, however, the plaintiff attempted to explain by parol testimony: *465 and the admission and rejection of the evidence which was offered for this purpose, form the subject of the several bills of exception.

The first and second bills may be considered together. Was Henry Myers, the contractor and one of the defendants in the suit, a competent witness ? Second: Can his declarations, and to what extent, be given in evidence to affect the college 1

This is a proceeding in rem. The contractor is joined in the suit, for the benefit of the owner of the building. It is required that he should be a party, that he may furnish proof, if necessary, to prevent an overcharge in the amount of materials, and to prove any payment which he may have made on the contract. But, although he is a party to the suit for these purposes, yet he can not be reached personally in this action, nor is he directly liable, as has been already ruled, for the costs. The objection to his competency cannot be rested on these grounds. But has he not, notwithstanding, an interest in the event of the suit 1 If the plaintiff recovers in this action, the contractor will be answerable over, at the suit of the college. In that action the judgment here will be evidence, not only for the amount of the debt recovered, but also for the costs incurred in this suit; and in some flagrant cases, perhaps for damages for breach of his contract. Whereas, in a suit by the material man, he would be liable for the debt with the costs alone, in that suit. He has then an interest to prevent the recovery, as he cannot be said to have an equality of interest. This case, however, is not an exception to the rule, which enables a party to restore the competency of a witness by a release. The next question is, whether his declarations, and to what extent, can be given in evidence in this proceeding. It would seem to follow from the above remarks, that the admissions of the contractor may for some purposes be given in evidence; but the utmost latitude which ought to be allowed, is his admissions as to the materials which have been received, or the amount which may remain due; and even these ought to be admitted with great caution, and subjected to the nicest scrutiny. In this case declarations were allowed, whose only tendency was to prove that the lumber was furnished on the credit of the building ; and these declarations, it must be remarked, were made, not at the time of the sale, but afterwards. It was not, therefore, part of the res gestae, and admissible on that score. In this we think the court have gone too far. Such testimony would put the owner completely in the power of the contractor and lumberman; and as in general it is only when the contractor is insolvent that resort is had to the building, it is a most dangerous species of proof.

The account, which, be it observed, commences about three months before the contract for the building, is charged, except the last item, against the contractor. He, so far as appears on the account, is the only debtor; and the only manner in which any *466 lien can be made to attach, is by the introduction of parol proof, as to the intention of the contracting parties. Under these circumstances, the owner of the building offers the evidence contained in his second bill, which is excluded, I am led to believe, because it was irrelevant, calculated to mislead the jury, and based as was supposed, on a perversion of the fact in this, that although the account commenced on the 27th of January, yet the plaintiff only claims that part of it, which begins on the 27th of April. I am not very forcibly struck with the justice of this complaint, under the suspicious aspect in which this case is presented. It does not seem to me, that it is dealing unfairly with the plaintiff, to take the account as it appears on his own book. But making every allowance for the items charged in the intermediate time, there is still an excess of materials to no trifling amount, charged over the quantity, which the defendants offered • to show, could by any possibility be required in the erection of such an edifice. The evidence tended strongly to show gross negligence, if not fraud, in what we esteem to have been the duty of the vendor. It is a great mistake, which cannot be too soon corrected, if any suppose that when a person undertakes to furnish lumber to a contractor on the credit of a building, that he is relieved from inquiring into the nature of the building he trusts, whether it is brick or frame, whether it is a one or three story house, or whether it is large or small: that in short, he can furnish materials enough to complete a three story house of the largest dimensions, when the materials are intended for a house of the most inferior description. The very fact that he credits the building, and does not depend altogether on the personal responsibility of the contractor, should, it would seem, immediately suggest the propriety of making the necessary inquiries, as to the size, materials, and nature of the intended erection. We do not say that a trifling excess over what the most rigid economy would require, will vitiate the account; that would be an unnecessary, or perhaps, unjust restriction; but when it is obvious that it is the result either of negligence or fraud, sound policy and a just regard to the interests of owners, require that the consequences should be visited on his own head. If any other rule is adopted, there will be no security for owners, as the materials charged, may, and often will, exceed the value of the building itself. It is not indispensable, as was ruled in Church v. Davis, ( 9 Watts 304 ,) that the account should be opened against the building. The Act does not prescribe the kind of evidence necessary to prove that the debt was thus contracted, but leaves that to depend upon the ordinary rules of evidence. Yet notwithstanding, it would be well worth the serious attention of the vendors to pay some attention to this, as when this is omitted, the account comes before the court in rather a suspicious and questionable shape. It enables material men, when a contractor is engaged *467 in different works at the same time, to fasten a lien on all, or any one, or more of them, at his pleasure. The owner should have at least, all the advantage that may arise from an unequivocal intention to hold the building answerable to the amount of the materials which may be furnished. It very often happens, that when the materials are purchased, the personal responsibility of the contractor is deemed amply sufficient; but subsequent events make it expedient to resort to another security. This affords a temptation, which is irresistible, to create a lien by the aid of parol testimony, when such a thing never entered into the imagination of either vendor or vendee. When this is the case where there is more than one building, it will be usually entered against that building which happens to afford the best security for the debt.

We see nothing wrong in the answer of the court to the plaintiff’s second point; for although we are of the opinion that the testimony should be scanned with the greatest severity, yet we perceive no error in leaving the determination of the fact to the jury. The whole case shows the difficulties that result from the manner of keeping the account. If the first account had been closed as it ought to have been, and the second had been opened in proper form against the contractor and the building, describing it, no such difficulty could have arisen. If any loss accrues to the plaintiff, he has his own negligence to blame for it.

Judgment reversed, and a venire de novo awarded.