Weber v. Weatherby

Stewart, J., delivered the opinion of the Court. This appeal involves the’ interpretation of the 61st Article of the Code, in reference to the mechanics’ lien. No question is made, as to the form or regularity of the proceedings, under the law, but the claim for the articles furnished by the appellees, although used in the house of the appellant, is resisted by him, upon the ground, that the articles were not furnished by his authority, and that the provisions of the law afford no lien on his property for the same. There is no doubt, the claim of the appellee must come within the scope of the law, or the lien cannot be maintained.

Whilst the house of the appellant was in the course of erection by him, he contracted to sell it to Ranstead. By the terms of the contract, the appellant was to finish the house, ⁶⁶⁰ like the one adjoining; certain payments were to be made by Ranstead, and other stipulations were incorporated in the contract; the sum of $100 was deposited by Ranstead, as a forfeit, provided in case of non-compliance on his part. This contract was subsequently abandoned by Ranstead, because of the alleged inability of Weber to finish the house by the time agreed npon, and he refused to take the house. Weber seemed to have acquiesced in the abandonment of the contract, retained the $100 forfeit, and with it the house and the fixtures in question, which had been ordered by Ranstead, and furnished and delivered by the appellees on the premises, and put up in the house during the pendency of the contract.

The agreement between the parties for the sale of the house, appears to have been mutually waived, and no question is presented in regard thereto, except as it may relate to the creation and imposition of the lien for the materials furnished, whilst the contract was in force. According to the evidence, the furnace for the house adjoining cost $360, whilst the charge for the one ordered by Ranstead, was $470. As the house, agreed to be sold, was unfinished and had to be completed by Weber, according to the contract, like the.one adjoining, including of course such a furnace as was contained in that; if precisely the same sort of furnace had been directed by Ranstead, and had been put up in the house in the possession of Weber, with his knowledge and without objection, it would be a reasonable inference that it was done with his sanction and approval, and by his authority. Under such circumstances there could be no question of his liability, according to the contract, to pay