Treusch v. Shryock

Irving, J., delivered the opinion of the Court. This was a proceeding taken on the part of the appellees to enforce a mechanic’s lien, and has been ehfore this Court on a former appeal; hut upon questions not now presented. The first exception brings up for review the correctness of the Court’s action in granting the appellees’ prayer. That prayer is in the following words: “ The plaintiff's pray the Court to instruct the jury, if they find from the evidence in the case, that the defendant, O’Connor, was employed by the defendant, Treusch, to build for him the houses in question, and that the defendant, O’Connor, contracted with the plaintiffs to furnish him the lumber necessary to build said houses, and that the plaintiffs did deliver said lumber to said O’Connor, including the item of the 4th of November, A. D., 1876, under said contract, and that notice of the plaintiffs’ intention to lay said lien was given the defendant, Treusch, within sixty days from the date of the last delivery of lumber, and that the said lien was duly filed within the time required by law, and that the contract between said Treusch and O’Connor was not at an end on the 4th day of November, 1876, the date of the last delivery, and that the houses had not been accepted in good faith on or prior to the said 4th day of November, 1876, by the defendant, Treusch, then the plaintiffs are entitled to recover the amount of their lien claim, with interest from the 9th of March, A. D., 1877.” The appellant objected to the granting of this instruction for the want of sufficient evidence to support it. u The particulars, in which the proof is supposed to he defective,” and all the evidence connected with the supposed defect, have been stated in the hill of exceptions in accordance with the fourth rule of this Court.

The special particulars wherein the evidence failed, as contended by appellant, are: ³³² 1st. As to the delivery of the item in the lien claim filed, charged as of June 20th, 1876, amounting to $71.05. 2nd. That the dates stated in the lien claim as the dates of deliveries are not the dates of delivery. Notwithstanding the dates in the lien claim do, in some instances, appear to he in error, yet the proof seems to have established the actual delivery of the several articles charged, though on other days than those named in the lien; except as to the item of June 20th, 1876, amounting to $71.05.

The nineteenth sec. of Art. 61 of the Code does require the time when the work is done or materials are furnished to he stated in the lien filed ; but if by accident or mistake, and without fraud, the date is erroneously entered, and the proof establishes the doing of the work or the actual delivery of the materials which are charged, and supplies the correct date, which is within the time allowing the lien to he filed, we do not think the error can he availed of to defeat recovery. Any supposed errors, therefore, in the dates of delivery named in the lien, and corrected by the proof, furnish no substantial ground of objection to the prayer. But as to the item charged in the lien as of June 20th, 1876, amounting to $71.05 according to the