Donahue v. Cromartie

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

The only question in this case is whether the machinery mentioned in the pleadings was intended to be and was used as a part of the building of the sugar refinery. If so, the price stipulated to be paid for It constituted a lien, within the meaning of the statute. It is argued, that parol proof of this intended use or purpose cannot [86]be introduced in aid of the written contract for the machinery, which is silent on the subject. But we think that this evidence is not inadmissible. It does not contradict or add any new term to the written contract; it merely shows the purpose to which work stipulated for in the written contract is or was designed to be applied.

We think there is no force in the point, that to constitute a lien the work must be done in the making,or erection of a building; but that the alteration of a building to adapt it to other than the original uses, or even to change its form or structure, brings it within the provisions of the statute.

Judgment reversed, and the Court below will enter a judgment on the report of the referee.

On rehearing, Norton, J. delivered the following opinion Field, C. J. and Cope, J. concurring.

A rehearing was granted in this case upon a petition suggesting that this Court had fallen into an error in its former opinion in supposing that the question as to the right to a lien had been affected by the admission of parol testimony, and did not depend solely upon the terms of the written contract. Upon reexamining the record we do not find that any error was committed by this Court in that respect. .

In this Court the case is presented on the report of the referee, without any statement on motion for a new trial. The report of the referee consists of two parts—one being in the usual form of a finding of facts and conclusion of law, and the other being called an opinion, and consisting mostly of a discussion of the facts and law of the case and the reasons of the referee for his findings. In the former portion the referee finds as a fact, that “ all the machinery mentioned in said contract A,’ and in said schedule 0,’ was furnished by plaintiff to the defendants as materials for said building, and to be used in and about the same, for the purpose of altering the same and converting it into a sugar refinery, for which purpose said machinery was intended and designed and used.” In the latter part of the report the referee says : “ It may be noticed here that both parties, in the course of the trial, objected to evi