McMurray v. Taylor

Scott, Judge,

delivered the opinion of the court.

This was a suit on a mechanic’s lien. The materials were furnished and the work completed on the 29th of November, 1856. On the 20th of December following, the account was closed by a negotiable note of the defendant, payable to the plaintiffs ninety days after date. On the 25th of February, 1857, before the note was due, the plaintiffs filed in the land court a lien for the materials furnished and labor performed by them for the defendant. The lien was founded on the account for materials and labor, which had been closed by the note dated 20th of December, and payable ninety days after date.

On the following statement of facts the question arises whether the lien of the plaintiffs was extinguished. By the ninth section of the act concerning mechanics’ liens, a contractor is required to file his lien within ninety days after the materials are furnished and the work is done; and by the twentieth section of the same act he is required to commence a suit within nine months from the time of filing his account as a lien. We see no reason why the facts detailed should affect the plaintiffs’ lien. It does not appear that the defendant was injured in any way, or that any injury could result from taking a note payable at a future day, but within the time within which the suit must be commenced to enforce the lien. Would it be maintained that a note payable on demand or at sight would have such an effect ? A note does not extinguish an open account. Upon the production of the note a recovery may be had on the account. The giving of a day for payment was a benefit to the defendant, and it did not injure *267 him. as it was payable within the time within which the plaintiffs were required by law to bring their suit to enforce the lien. Without the note the plaintiffs might have delayed suit beyond the time of payment given to the defendant. As the note did not extinguish the account, nor the delay injure the defendant, on what ground or principle can it be maintained that the plaintiffs have lost or waived their right to enforce the lien ? The giving of the note was at most but a suspension of the right of action. There is a difference between the suspension and the extinction of a cause of action. By giving time for payment, the plaintiffs did not impliedly waive their right to file their lien. The filing of the lien was no step in the bringing of a suit. That was a means only of securing their debt which they might afterwards pursue or abandon at their pleasure.

A witness stated that a receipt was taken for the account; that its language was that the note was taken in settlement of the account. We are of the opinion that there was no error in the court’s refusing the instruction asked by the defendant, to the effect, that if the plaintiffs agreed to take defendant’s note at ninety days in payment of the demand due them, and did so take the defendant’s note, they will find for the defendant. There was no evidence on which to found such an instruction. The cases abundantly show this. (Glenn v. Smith, 2 Gill & John. 493 ; Muldon v. Whitlock, 1 Cow. 306 ; Tobey v. Barber, 6 John. 68 ; Putnam v. Lewis, 8 John. 389 ; Peters v. Beverly, 10 Pet. 532 .) In suitable cases, where there is evidence that a note was taken in satisfaction of an open account, it is a question to be left to the jury. But on the authority of the cases cited, there was no evidence tending to establish that fact.

The account on which this proceeding was had became due under the general law concerning mechanics’ liens, and its provisions have been referred to, as they make no change in the case from what it would have been under the act subsequently, on the 14th February, 1857, enacted for St. Louis *268 county. . The reference to that act is not intended to imply that this case should have been governed by the general law.

Judgment affirmed, with ten per cent, damages.

Judge Ewing concurs. Judge Napton absent.