Trustees of the German Lutheran Evangelical St. Matthew's Congregation v. Heise

Alvey, J., delivered the opinion of the Court. The bill in this case was filed by Heise and Company against the contractors, and the Trustees of the Church, and the several lien claimants, to enforce a lien against the Church edifice, for the building of which they had furnished the contractors lumber ; the balance due on their claim being $3,489.13, according to the account filed. . With the proceedings on this bill were consolidated the proceedings on a bill filed by Frederick and Herman Wehr, partners, trading as F. & II. Wehr, also to enforce a lien claim against the Church edifice, for bricks furnished the contractors, used in the erection of the building ; the amount of their claim being $5,949.33.

In these proceedings the several lien claimants were required to come forward and establish their claims, and their right to liens ; and among those whose claims were passed upon by the decrees appealed from, were Heise & Company, A. Weiskittel & Company, A. Storck & Son, and F. & H. Wehr, and from the allowance of whose claims the Trustees of the Church have appealed ; and for ⁴⁶⁴ the disallowance of interest on their claim, Heise & Company have also appealed; and for the entire rejection of the claim of Wilson & Hunting, they have appealed from the decree of the Court below. Proceedings were conducted and proofs taken in support of claims until the 23rd of March, 1875, when the cause was submitted to the Court below without argument; whereupon the' Judge ordered that the cause be referred to the auditor, to report the pleadings, facts, and his opinion ther-eon. Under this order of reference, the auditor made a statement of the several lien claims filed, and o.f the facts offered in support thereof; and as to several of the claims the auditor stated his opinion to be that they were not sustained by the proof. Upon this- report of the auditor, Heise & Company, Weiskittel & Company, and A. Storck & Son, made application to the Court for leave to take additional evidence as to certain objections to their claims stated by the auditor ; and the Court granted the applications, and allowed additional evidence to be taken.

Under this leave, witnesses were re-examined as to the same subject-matter upon which they had been formerly examined by the claimants ; and to the allowance of this additional evidence to be taken, and to the re-examination of witnesses upon the same subject-matter, the Trustees of the Church have filed exceptions, and insist that such evidence should be excluded. In the argument at bar, a good deal was said as to the form of the reference, and the power of the auditor to proceed as he did to examine the claims, and to declare his opinion as to whether they were established or not. But in what was done by the auditor, under this order of reference, we can perceive nothing irregular or unwarranted by the practice of the Court. The auditor is the calculator and accountant of the Court, and when any calculations or statements are required, all the pleadings, exhibits and ⁴⁶⁵ proofs are referred to him, so that he be enabled fully to investigate and put the whole matter in proper order, for the action of the Court.

His office, while not in all respects the same, is yet, to a certain extent, very analogous to that of a Master in Chancery. His powers and duties are fully stated and defined by Chancellor Bland, in Dorsey vs. Hammond, 1 Bl., 463 , 467, and Townshend vs. Duncan, 2 Bl., 45 , 74. The arrangement and statement of the claims, with the facts applicable to each, as exhibited in the auditor’s report, no doubt greatly aided the Court below in disposing of the case; and it detracted nothing from the value of the statement that the auditor indicated his opinion as to whether the claims were or were not supported by proof. But the auditor having made his report, under the reference made on the submission of the case, the question is, whether the taking of additional evidence, and the reexamination of witnesses as to facts or subjects upon which they had been previously examined, should have been allowed.

As to the power of the Court to allow additional evidence to be taken, ev.eu after the cause has been submitted, that would seem to be clear, though the power is not generally exercised except in cases where, from accident or inadvertence, omissions or defects of proof have occurred, which the party could have readily supplied. A large number of the cases upon this subject are brought together and reviewed by Vice-Chancellor Shadwell, in the case of Hood vs. Pimm, 4 Sim., 101, where it is shown that a Court of Equity will, at any stage of the proceedings before final decree, allow defects in proof to be supplied, provided the party applying has not precluded himself from such indulgence by negligence or delay. This, however, is a discretionary power, from the exercise of which no appeal will lie, and is not therefore a subject of review by an Appellate Court. ' ⁴⁶⁶ The' other question raised by the exception, that of allowing witnesses to he re-examined as to subjects and matters of fact about which they have been previously examined by the same party, is one of great practical importance, but is thoroughly well settled upon authority. A witness who has been examined in the cause, as to its merits, should not be examined again without an order ; and such order generally embodies a special direction that the witness shall not be re-examined upon any points with respect to which he has already given testimony in the particular cause, unless it be satisfactorily shewn to the Court that there has been mistake, or inadvertent omission, in the previous examination.

To afford witnesses facility of repeatedly amending their testimony, as the emergencies of the case may seem to require, would be extremely dangerous to truth and justice, and especially so where the parties themselves are the witnesses to be re-examined. Rowly vs. Adams, 1 M. & K., 545. The question was fully considered by Lord Thublow, in Vaughan vs. Lloyd, 1 Cox, 318, where the well established rule is stated with great clearness, as also the reasons upon which it is founded. The Chancellor said: “The first ^ question is, whether in any case a witness who has already been examined in the cause, can be again examined before the master without leave of the Court had for that purpose ; and this is a dry point of practice.

Now if the witness has 'been examined only to trifling facts in the cause, or if, in truth, he knows more than he has already been examined to, it would most eertainly be very hard to prevent the party from having the benefit of his testimony before the master. But the question is, whether the Court has not taken the precaution of making it necessary for the party in that case, to apply for leave of the Court? — which leave the Court will certainly grant whenever the substantial justice of the case requires it, but will put the party under the terms of having the interrogatories approved and settled by the ⁴⁶⁷ master, who in so doing will take care that the same witness is not a second time examined to the same facts ; not only to prevent the parties being loaded with unneccessary expense, and the cause with useless depositions, but. what is still a greater object, to avoid the danger of perjury, which would be incurred by a witness deposing a second time to the same fact, after having seen where the cause pinched, and how his testimony bore upon it.” The depositions in that case were suppressed. Many other cases to the same effect could be cited, if it Avere necessary, but there is only one other to which we shall make reference, and that is the case of Remsen vs. Remsen, 2 John. Ch., 495, a decision of Chancellor Kent, in which the authorities are reviewed, and the rules stated, which should govern in taking testimony in Chancery.

If, says the Chancellor, '‘ Examinations are protracted from day to day, for any length of time, there is very great danger of abuse from public examinations, by which parties are enabled to detect the weak parts of the adversary’s case, or of their own, and to hunt up or fabricate testimony to meet the pressure or exigency of the inquiry. It is to guard against this abuse that exaininations-in-chief are not permitted after publication, and that Courts of law will not grant new trials merely to enable a party to accumulate testimony on any given point, or to oppose that which was taken on the opposite side. It is also upon the same grounds, that a witness, avIio has been examined in-chief before the hearing, cannot be re-examined, before the Master, without an order, and then not to any matter to which he had before been examined; (Dickens, 508;) and that a Avitness once examined before the Master, cannot be re-examined without an order.” 2 Ves., 270; 2 Madd. Ch., 392, 393.

See also 3 Greenl. Ev., sec. 336, where the same rules are stated. In this case, leave was obtained to take additional testimony in reference to certain objections made to the accounts ⁴⁶⁸ of the claimants, but in no case, except that of A. Storck & Son, was it brought to the attention of the Court that it was the purpose of the parties to re-examine witnesses and parties who had been previously examined in regard to the same subject-matter. In Storck’s case, there was special application made for leave, and leave given to re-examine G. J. Storck.

But in the other cases, parties and witnesses who had been previously examined, were re-examined as to the same matters of fact, and reireated, with some variations, their former depositions, under the leave to take additional evidence. The evidence thus taken on re-examination, without special order obtained for that purpose, must he excluded from consideration. It was evidence introduced into the case without warrant or authority, and should have been suppressed or excluded on the exception of the appellants. Having thus disposed of the question of evidence, applicable to the cases of Heise & Company, Weiskittel & Company, and Storck & Son, we shall now proceed to consider the claims separately, as presented in the record, and determine whether they are established or not. 1.

As to the claim of Heise & Company: This claim, is lor lumber furnished the contractors, and which was used in the erection of the Church. There is no question as to the quantity of lumber furnished; nor is there any question as to the regularity or form of the proceedings taken to fix the li'en. The objections to the. claim are, first, that the materials were not furnished under a continuous contract, and, as nearly all the materials were furnished more than sixty days before notice given of claimants’ intention to claim a lien,-under the Code, Art. 61, sec. 11, and more than six months before the time of filing the lien claim for record, under the 23rd section of the same Article of the Code, therefore the lien is not good, except for the materials actually furnished within those periods; and, secondly, ⁴⁶⁹ that the claim is subject to credits that have not been given. The account for lumber furnished the Church commenced on the 3rd of April, 1872, and concluded on the 14th of February, 1873.

Notice of the claimants’ intention to take the lien was given on the 9th and 12th of April, 1873, and the lien claim was filed for record on the 21st of June, 1873. If, therefore, the theory of the appellants, the trustees, be correct, there is but a very small portion of the account embraced by the lien. The account, as stated and filed with the claim for lien, and which is proved to be correct, shows that the materials were continuously furnished within the period stated, during the progress of the building. The items are very' numerous, and deliveries were made at short intervals of a few days, as the materials were wanted at the building; and this course of dealing continued during the entire period covered by the account.

The lien law, Code, Art. 61, secs. 1 and 11, speaks of the contract for furnishing work or materials to the builder, or other person than the owner ; but we do not understand from this that it is incumbent upon the claimant to establish the fact that there was an express antecedent contract made with respect to the exact quantity of work or materials to be done or furnished by him. In the absence of evidence of such express contract, the character of the account, the time within which the work was done or the materials were furnished, and the object of the work or materials, may afford proper grounds for the presumption that the work was done or the materials were furnished with reference to an understanding from the commencement that such work or materials should be done or furnished, if required by the builder ; and in such case, it is from the last item in the account that the notice, and the time within which to take the lien, shotild date. If this were not so, in every case where there is no express con ⁴⁷⁰ tract, the mechanic or material man would be under the necessity of taking several liens during the progress of a single building. But where the materials are furnished for separate and distinct purposes, or at different times, and at considerable intervals, or under distinct contracts or orders, though to be used by the contractor or builder in executing one and the same contract with the owner, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different parcels of material, and not from the last item in the account.

In this case, there was such a continuous dealing, and running account of the materials furnished, and the deliveries were at such short intervals, and in such quantities, that the presumption arises that it was understood from the beginning that the claimants were to furnish the materials charged for as they were required in the progress of the building. And this presumption, we think, upon a fair construction of the evidence, is not overcome or removed by anything stated either in the testimony of William Heise, or his witness, J. Gr. Jones. We are therefore of opinion that the Court below was correct in regarding this lien as established ; but to what extent will depend upon the next question to be considered.

And that question is, how are certain credits tobe applied to the discharge of the debit items of the account? It appears that there were large dealings between Heise & Company and Siegman & Jones, the contractors. The former kept but one general account of the materials furnished to-the latter, the materials being furnished for different buildings; but in charging the materials it was noted in the account for what particular building or object the materials were supplied. This general account ran from 1871 to June, 1873.

On this account several credits were entered, with no other special application than such entries on the credit side of the account, with dates and amounts, will have assigned them by law'. When the ⁴⁷¹ materials supplied for the Church were segregated from the general account, and put in a separate account to be filed with the claim for lien, all the credits were omitted, except one of $218.95, and the way that credit was placed on the account of the lumber furnished for the Church is explained by witness Myohl, the book-keeper. He says that he ascertained the amount of the credit thus placed on the account, by first making out a correct bill for all the lumber furnished to the Church, and then, by balancing the general account, he found that the contractors, Siegtnan & Jones, had a balance to their credit of $218.95, which he placed to the credit of the Church account. Thus applying the credits to the other portions of the general account to the exclusion of that portion of it which was for materials supplied for the Church.

This the claimants were not warranted in doing. The general principle governing the application of payments, in a case like the present, is well settled. It is perfectly clear upon all the authorities since Clayton’s Case, 1 Merv., 585, decided by Sir Wm. Grant, that where divers debts are due from a person, and he pays money to his creditor, the debtor may, if he thinks proper, appropriate the payment to the discharge of any one or other of those debts ; and if he does not appropriate it, the creditor may make an appropriation ; but if there is no special appropriation by either party, and there is a current account betioeen them, as was the case here, the law makes an appropriation according to the order of the items of the account, the first item on the debit side of the account being the item discharged or reduced by the first item on the credit side.

Pemberton vs. Oakes, 4 Russ., 154. And where the demand is entire, as the general account against Siegman ds Jones was, at the time of the payments made and entered, the creditor will not be allowed to separate or split such demand into parts, and appropriate a general payment to that part which is most advantageous to him ⁴⁷² to be paid. This is well illustrated by the case of James vs. Child, 2 C. & J., 678, in which an attorney having delivered a hill containing taxable items, and items not taxable, and there being a general payment made on account, it was held that the attorney could not appropriate the payment to that part of the bill which was most to his advantage to have paid. Here there was no distinct appropriation of the payments by either party to any particular part of the account, but the payments were made on account generally, and were so entered ; and in such case, by operation of law, the appropriation is at once made to the discharge or reduction of the first item or items on the debit side of the account.

Neidig vs. Whiteford, 29 Md., 179 , and cases there cited. From these principles it follows that the payments made by Siegman & J ones on the general account must be applied according to the order of the items of the accoimt as it