Bennett v. Davis

Temple, J. This is an action for the foreclosure of a mechanic’s lien. In the complaint it is averred that [338]plaintiffs contracted and agreed with defendants “to furnish in the addition to, and in the alteration of, the certain building heretofore erected on said premises by said Davis, certain materials, to wit, certain mantels, tiles, and grates,' and the appurtenances thereof; and also the labor required in the addition of the same to, and the erection of the same in, said building as a part thereof,” etc.

The mantels and other materials were furnished and were erected in the house of defendant Davis, and the only question presented here is whether plaintiffs, in the purview of the mechanics’ lien law, are material-men or original contractors.

As the court found in favor of the lien, the inquiry resolves itself into this: Is there evidence upon which the conclusion can be sustained? One was a woodejn mantel, and the other what the witness called a tiling mantel.

Schutte testified that a tiling mantel is composed of numerous parts, from one hundred and fifty to ten thousand. “The tiling is placed in the building by attaching it to the brickwork and to the chimney. It is not nailed; it is a material part of the chimney; an integral part of the chimney itself. It is attached to the brickwork surrounding the mantelpiece; we cement it to the brickwork. It is put there permanently and not for temporary use. They are part of the mantel proper, as much as a door is to a house.” He further said that the contract was to furnish the materials and the labor necessary to put them up. They kept the mantels in their store for sale, put together, as they would appear when finally put up. The brickwork was done by the contractor, but they set up the mantels, huilt the fireplaces and inclosed them. They agreed upon the price of the mantels with the regular grate set up.

The question is somewhat similar to that which sometimes arises under the statute of frauds—the precise issue being whether a contract is one of sale or for [339]the manufacture of goods. Numerous decisions have been rendered in such cases, and, so far as I know, no rule universally applicable has been formulated. The cases seem generally to turn upon the relative value of the work and goods, or how far the article was modified by the work.