The statute grants a right of lien to the petitioner as security for materials furnished, and we think that it would be unreasonable to presume, without clear proof of an agreement to that effect, that the mere giving of the credit for thirty days waived the right to claim the lien at the end of that time. Wheeler v. Schroeder, 4 R.I. 383, 391; 27 Cyc. 49. The most that can be claimed under the agreement is that it suspended petitioner's right to commence proceedings to enforce its lien for thirty days. Having thereafter commenced legal process against respondent's land within the time limited by statute, petitioner is entitled to its lien. The L.H. Tillinghast Supply Company sold some materials to the Heating Company to enable them to complete their contracts on the Elmgrove Plat. The materials were delivered to the Heating Company's truckman at the warehouse of the petitioner.
No request was made to the trial justice to correct his mistake in this particular, and the exception is untenable. If the court misstates evidence to the jury neglect or failure of counsel to call the attention of the court to it at the time is a waiver of the right to take advantage of it afterwards. Case, Jr. v. Dodge, 18 R.I. 661; Wheeler v. Schroeder, 4 R.I. 383. Plaintiffs' other exceptions were expressly waived and therefore are not considered.
In S. v. Prince, 182 N.C. 788, on which the defendant relies, it is said: "The province of the jury should not be invaded in any case, and when reasonable minds, (735) acting within the limitations prescribed by the rules of law, might reach different conclusions, the evidence must be submitted to the jury. Campbell v. Everhart, 139 N.C. 516, 52 S.E. 201; Lewis v. Steamship Co., 132 N.C. 904, 44 S.E. 666; Wheeler v. Schroeder, 4 R.I. 383; Offutt v. Col. Exposition, 175 Ill. 472, 51 N.E. 651; Day v. Railroad, 96 Me. 207, 52 A. 771, 90 Am. St. Rep. 335; Catlett v. Railway, 57 Ark. 461, 21 S.W. 1062, 38 Am. St. Rep. 254; Railroad v. Stebbing, 62 Md. 504." Applying these principles to the evidence, we think his Honor properly submitted to the jury the question of the defendant's guilt.
As the contract was clear in its terms, there was no question for the jury, and the ruling of the court was right in refusing to submit the construction of the contract to the jury. Wheeler v. Schroeder, 4 R.I. 383. The plaintiff offered to show that an agent of the defendant made representations by reason of which the plaintiff signed the agreement.
If an insolvent owed a debt for goods and gave a note for the amount, that would not discharge the debt, without special agreement. Wheeler v. Schroeder, 4 R.I. 383; Wilbur v. Jernegan, 11 R.I. 113; Nightingale v. Chafee, 11 R.I. 609. The creditor might sue upon either, yet no one would claim that he would be entitled to a dividend on both because he had a cause of action on each.
While the findings of facts — wherein it appears that Nutting gave his notes to the Machine Company for supplies furnished him from time to time and for balances due on the lien debt, and received in exchange the original notes — were evidence in support of the plaintiff's contention, yet the fact that the original debt was secured by a lien upon the property was strong evidence tending to show that the Machine Company did not intend to receive Nutting's individual notes as payment of that debt and in extinguishment of their security. Sweet v. James, 2 R.I. 270; Wheeler v. Shroeder, 4 R.I. 383; Hopkins v. Detwiler, 25 W. Va. 734; 22 Am. Eng. Enc. Law (2d ed.) 553. The conclusion on this branch of the case is, that the Nutting notes were received and held by the Machine Company as collateral to, or as conditional payment of, the lien debt; and not having been paid at the time of the sale of the property by the defendant, the lien claim was not discharged, and the title and right to the possession of the property was in the Machine Company, or the party owning their interest.
The plaintiff's neglect to have the error corrected at the time was a waiver of his right to subsequently make objection thereto. Wheeler v. Schroeder, 4 R.I. 383, at p. 394. A party is not allowed to stand by and permit what he may deem objectionable instructions to be given, or incorrect statements of the testimony to be made, and await the verdict of the jury before excepting to the one or calling attention to the other.
Neglect or failure to do so was a waiver of the right to take advantage of it afterwards. Wheeler v. Schroeder, 4 R.I. 383; Newton v. Weaver, 13 R.I. 616, 619. Fifth: — That the presiding justice refused to instruct the jury that if they found that the defendant Elizabeth Dodge had entered into any agreement prior to July 1, 1893, by reason of which she bound herself, they could not find that she was liable in this suit on such contract, because the law of this State is not retroactive. Though the statute we have quoted, Pub. Laws R.I. cap. 1204, § 1, is not retroactive, the plaintiff is, as we have already seen, entitled to maintain his action.
Ogden v. Redd, 13 Bush, Ky. 581, 582; Gilmore v. Green, 14 Bush, Ky. 772, 774, 775. It appears, however, from the copy of the first note, annexed to and made a part of the bill, that the indorsement of interest was not of absolute payment, but only of payment by the second note. The taking of a note for a preexisting debt is not payment or discharge of the preexisting debt, but amounts merely to conditional payment. Sweet Carpenter v. James, 2 R.I. 270, 292, 293; Wheeler v. Schroeder, 4 R.I. 383, 388, 389. And where the note is taken payable on demand, as in the case at bar, the creditor is at liberty to sue immediately upon the original debt, being only required to deliver up the note before judgment.
This was certainly significant, but perhaps not decisive; for it may be said they were paid sub modo, but not absolutely. Maillard v. Argyle, 6 M. G. 40; Berry v Griffin, 10 Md. 27; Wheeler v. Schroeder, 4 R.I. 383; 2 Amer. Lead. Cases, 5th ed. 267. But in the case at bar there was something beyond even this.