Opinion
11-04-1904
WILSON v. DIETRICH et al. WILSON et al. v. SAME.
Watkins & Avis, for complainants. Wm. C. Jones, for defendants Dietrich & Bowser. R. T. Miller, for defendant city of Cape May.
Suit by Robert J. Wilson against George C. Dietrich and others, and suit by Charles Wilson and another against the same defendants. Heard on bill, answer, and proofs. Decrees for complainants, and the cases were referred to a master to take an account.
Watkins & Avis, for complainants.
Wm. C. Jones, for defendants Dietrich & Bowser.
R. T. Miller, for defendant city of Cape May.
GREY, V. C. (orally). On this hearing the above two causes have been presented, the testimony taken to be applicable to each case. In any accounting they will have to be dealt with separately, because the claims are made by separate complainants. The fund out of which payments are to be made is the contract price of a public improvement going on in the city of Cape May. One of the complainants is Robert J. Wilson, and the other is the firm or partnership of Wilson & Horner. Counsel have very properly agreed to try the cases together, so that the testimony may be interchangeably related. When the cases come to be finally settled, separate decrees will be made ascertaining the amount due to each of the parties.
The complainants in both cases claim that they furnished goods and materials to Messrs. Dietrich & Bowser, who, on a contract they had with the city of Cape May, were in the latter part of the year 1903 engaged in the construction of a public improvement spoken of as the "Ocean Bulkhead and Boardwalk Improvement." There is no disagreement between the parties that the statutory conditions prescribed by the act to secure the payment to laborers and mechanics and others who furnish materials, etc., toward the performance of any work or public improvement in cities, etc., approved March 30, 1892 (to be found in Gen, St p. 2078), apply to this case. Nor is there any dispute that the complainants, in giving of notice of their claims to the various municipal officers, and filing them, have substantially complied with the terms of the statute. The kernel of the dispute between the parties is on this question: Did the complainants furnish material which went into this public improvement directly to Messrs. Dietrich & Bowser under a contract made with them, or did they furnish this material to a man named Wilson Banks by virtue of a contract which the complainants made with him? Both cases practically turn upon this point. Mr. Wilson Banks is incapable of paying the amounts of money which, if the contracts were between him and the complainants, he is obligated to pay. But if the complainants actually sold and delivered the material to Dietrich & Bowser by direct contract with them, then the complainants have solvent parties to deal with, and are secure in the collection of all of their debts. As I understand the pleadings, the complainants claim that the contracts were ab initio between them and Messrs. Dietrich & Bowser. I am unable to find anywhere in their pleadings any claim that at any time, from the beginning to the end, either of them ever had any contract with Mr. Wilson Banks under which Banks became liable to pay the complainants for any shipment of piling made to the Cape May improvement. It is on these pleadings that these causes are being tried. The defendants Dietrich & Bowser, on the other hand, aver that they never had any contract with either of the complainants, that their agreement was solely with Mr. Wilson Banks, and that whatever shipments they received from the complainants or either of them were received because of agreements and inducements which Mr. Banks offered to the complainants, and orders which he gave, and under contracts which he made with them, and not under contracts which Messrs. Wileon& Horner or Robert J. Wilson made with the defendants Dietrich & Bowser.
The matters in dispute have thus come to be questions of proof to ascertain with whom the contracts for sale and delivery of the piling were made. That, however, does not finally settle the. whole matter, because it was held in the case of Garrison v. Borio, 61 N. J. Eq. 236, 47 Atl. 1060, in this court, that persons who had furnished material or had done work on the public improvement, under an agreement with the subcontractor, might assert a lien upon any portion of the contract price not paid to such subcontractor when the lien claim was notified, etc., under the statute. If, therefore, I should find that the complainants in this case did in fact agree with Mr. Banks to furnish the material which went into the improvement, and not with Dietrich & Bowser, the complainants will yet have a right to claim that, to the extent that the fund has not been paid to Banks, it shall be applied to satisfy the amount remaining due to the complainants. That is the situation. The fund will be applied to pay those who furnished material to the public improvement to the extent that it remains yet owing to the subcontractor. Under the statute the lien attaches to no other part of the contract price.
If I find that the complainants in these cases furnished the material to Mr. Banks, the first point to be established is, what was the price of the material furnished by them and accepted upon the improvement under their contracts with Mr. Banks, and what remained of the contract price in the hands of Dietrich & Bowser, due but unpaid to Banks, at the time the complainants' Hen claims were filed on December 11, 1903? Dietrich & Bowser will have to pay that sum to the complainants instead of paying it to Banks. That is the construction of the statute declared in Garrison v. Borio, and to that I propose to adhere in the disposition of these cases.
Now, as to the questions of fact. I am satisfied from the proofs here made that Messrs. Dietrich & Bowser contracted for the purchase of the pilings mentioned in the pleadings and proofs in this case with Mr. Wilson Banks, under the terms of their written agreement with him dated August 11, 1903, here produced and marked "Exhibit D1." I am satisfied they did not contract with cither Robert J. Wilson or Messrs. Wilson & Horner, complainants, as claimed by them, as to either the whole of the piling shipped, or any part thereof, and I shall so instruct the master when the case goes to him, if it takes that course. This view applies to and excludes the special claim of Wilson & Horner that they shipped seven car loads of piling to Dietrich & Bowser under a contract made directly with them. I find that there was in fact no lawful undertaking by Dietrich & Bowser to pay either Robert J. Wilson or Wilson & Horner for the pilings which those complainants, or some of them, had shipped to the Cape May bulkhead improvement under their contracts with Mr. Banks. The proof that Dietrich & Bowser undertook to pay the complainants for the piling which they shipped under contracts previously made with Banks is not only efficiently contradicted, but is wholly by parol testimony, and is obnoxious to the statute of frauds, as a special promise to answer the debt of another, and not in writing, signed by the party to be charged therewith. The complainants Robert J. Wilson and Wilson & Horner did in fact furnish material toward the making and completion of the public improvement at Cape May City, described in the testimony as the "Bulkhead and Boardwalk Improvement," and they are entitled to be paid therefor to the extent of the liability of Dietrich & Bowser for that material not yet paid for by them. The complainant Robert J. Wilson gave notice of his claim (under the act to secure payment to laborers and others, March 30, 1892 [Gen. St. p. 2078]) on the 11th day of December, 1903, and the complainants Wilson & Horner gave a like notice on the same day. I understand that counsel for both parties here present agree that they are unwilling to make any distinction between the time of the delivery of these two lien claims. Under these circumstances, although the statute recognizes lien claims as operative from the time of the service of notices, I am unable to find in these cases that one service preceded the other, and the only possible equitable way to adjust their priority is to hold that each claimant is entitled to be paid a pro rata share of the fund remaining applicable to both their claims. The defendants Dietrich & Bowser are liable, however, not only for the balance of the unpaid price of the pilings received and accepted by them under their contract with Banks, on the terms named in that contract, but also for those pilings which were at first rejected, and which were subsequently used by them in their work on the public improvement. The number of rejected pilings so used, and the value thereof, are unaffected by the price named in the contract under which they were originally shipped. Having been once rejected, they were outside the contract of the party who shipped them, and were his property. If Dietrich & Bowser subsequently used them without the consent of the owners or the fixing of any price, then the owners have a claim for unliquidated damages for this taking of their property. I will not ascertain what these claims should amount to. Let the master find that also.
Is there any question I have not disposed of?
Mr. Avis: There is one question, and that is whether this whole $1,900 was paid to Wilson Banks on account of the piling shipped to Robert J. Wilson and Wilson & Horner.
The Vice Chancellor: The master may be directed to ascertain what has been paid to Mr. Banks, and the balance due him, because it is necessary that that be found, in order to know what remains applicable to pay the complainants' claims. I do not find that any definite sum has been paid, or what sum remains so due and applicable. The master will look into these matters.
Mr. Avis: There is one other situation: Mr. Banks was at that time furnishing other pilings from other sources. Now, it seems to me that the master should take an accounting as between Dietrich & Bowser and Mr. Banks.
The Vice Chancellor: Such an order cannot be made in this cause. I cannot adjust that. Mr. Banks is not a party to this suit, and no account can be here stated which will bind him. In the accounting between the complainants and defendants, payments which were not applicable to the material furnished by the complainants cannot be credited against the material furnished and sued for in this suit. The basis of these claims is that the complainants furnished material which went into this public improvement; some moneys are yet due and unpaid for this material to the subcontractor, who furnished it; this money the complainants are entitled to have paid to them. All the questions as to the matter to be included in the accounting may be settled upon the framing of the order of reference, if any accounting shall be found to be necessary.
Mr. Jones: Your honor has not touched upon the freight.
The Vice Chancellor: The payment of the freight is governed by the contract between Dietrich & Bowser and Banks. I have so held. The materials were furnished under the terms of that contract, and the master can take those terms as the basis of his accounting. I think it is not impertinent to the disposition of these cases to notice the foolish way in which honest and sensible men conducted this business. It appears that the complainants, men of age and some intelligence, neither of them kept any book account of these transactions, except that one of them had a little pencil memorandum pocketbook, which is so rubbed up and obscured that its entries of items are almost indistinguishable. The difficulties attending on such a method, where the business involves various shipments of goods worth hundreds of dollars, and partial payments made at various times, have greatly embarrassed both court and counsel in the trial of these cases. If it is possible that the parties can get together and agree on any statement which will result in an acceptable arrangement of their claims without the stating of an account before a master, it would be a wise disposition of the matter. I shall not blame counsel under the circumstances if this cannot be done, but it seems to me to be clearly the real interest of ail parties that there should be a voluntary adjustment by conference, concession, and agreement.
Mr. Jones: I feel, if the decision of that matter is left to Mr. Avis and myself, we shall be able to work it out to such an extent that it will not be necessary to refer it to a master. I would like to ask a question which will have a great bearing upon what Mr. Avis and I shall do in making the settlement: Suppose this matter is referred to a master, upon whom will the costs devolve —upon all parties equally?
The Vice Chancellor: I will not now pass on that question. An account may be presented and taken in such a manner that the costs should be awarded one way, and it may be so conducted that the costs should be awarded in another way.
Mr. Jones: Suppose the costs were to be divided equally, and those costs were to amount to $200 each, I believe my clients would simply say, "Well, rather than go into this, we will forego this."
Mr. Avis: Will your honor suggest a master?
The Vice Chancellor: Not at the present time. Either party may on notice move for the appointment of a muster, and for an order of reference to state an account, etc.