#### The Van Dorn Iron Works Co. *v.*The Erie-Huron Realty Co. et al. The Erie-Huron Realty Co. *v.*The Van Dorn Iron Works Co. et al.

*Trial by jury—Express and implied waiver—Submitting case to court without objection—Court of appeals—Appellate jurisdiction—Money judgment and validity of mechanic's*Hen— *Contractor and materialman distinguished—Erection of steel stairway in buildings—Procedure to perfect lien—Section 8312, General Code.*

1. In a civil action for judgment for money a trial by jury may be waived, not only by express stipulation of the parties or their attorneys, or statement in open court, but also by their conduct In submitting the cause to the court without objection; and an objection thereto cannot successfully be made after such submission and judgment of the court. *(Bonewitz v. Bonewitz,*50 Ohio St., 373, 34 N. E., 332, 40 Am. St. Rep., 671, approved and followed.)

2. Where, in an action for judgment for money, in which by a second cause of action a mechanic’s lien is asserted and foreclosure thereof sought, the common pleas court renders a personal judgment against the defendant, but holds the lien invalid, an appeal taken by the defendant from such personal judgment to the court of appeals should be dismissed upon motion of the plaintiff.

3. A contract entered into by a company with an owner, whereby for a stipulated consideration the former agreed to furnish and erect in the building of the latter flights of pressed steel stairs extending from the basement to the fourth floor of the building, constitutes such company a contractor under the mechanic’s lien law of the state, and upon performance thereof in order to perfect a lien thereunder a compliance with the provisions of Section 8312, General Code, is essential.

(Nos. 17705 and 17710

Decided June 19, 1923.)

*315Ebboe to the Court of Appeals of Cuyahoga county.

The Van Dorn Iron Works Company instituted a suit in the court of common pleas of Cuyahoga county, wherein it sought to recover a judgment for a sum of money claimed to be due it under a contract with the Erie-Huron Realty Company for furnishing and erecting iron staircases in a building of the latter company. Plaintiff claimed to have completed its contract in accordance with the terms thereof. In a second cause of action the plaintiff sought the foreclosure of its mechanic’s lien, filed to secure the amount claimed to be due under its contract set up in the first cause of action.

The Erie-Huron Realty Company by answer denied the validity of plaintiff’s claim, in addition to contesting the lien. Various materialmen set up their several claims by cross-petition, wherein they sought both personal judgment and foreclosure of liens. All parties joined in trying and submitting the case to the court without a jury.

The common pleas court rendered judgment against the defendant in the full amount sued for, with interest, but found that the Van Dorn Iron Works Company was a principal contractor, and, not having filed the preliminary notices required, did not have a valid mechanic’s lien. The liens of the cross-petitioners were found to be valid and were ordered foreclosed. The case was taken on appeal to the Court of Appeals by the Erie-Huron Realty Company. The entry of that court, so far as it affects the Van Dorn Company, is as follows:

“The court further finds that the plaintiff, the *316Van Born Iron Works Company, having failed to file the statement required by Section 8312 of the General Code, preliminary to filing the affidavit for a mechanic’s lien, therefore failed to properly perfect said lien, and the claim of the plaintiff for a lien is therefore refused.

“And now coming to consider the claim of the plaintiff for personal judgment against the defendant the Erie-Huron Eealty Company, the court finds that the plaintiff having failed in its claim on the lien, the plaintiff is not entitled to a personal judgment, as this court has only equitable jurisdiction in this case, and therefore the claim for personal judgment is refused, and the plaintiff is left to its remedy at law, and the plaintiff’s first cause of action is therefore dismissed without prejudice, and on the plaintiff’s second cause of action judgment is rendered in favor of the defendant the Erie-Huron Eealty Company.”

The Court of Appeals further found that the several cross-petitioners had furnished labor and materials in the improvement of the building, in pursuance of contracts which the several defendants had entered into, respectively, with the Erie-Huron Eealty Company; that all of such cross-petitioning defendants had properly perfected mechanics’ liens; and that there was due them the several amounts which they respectively claimed.

Thereupon the Van Bom Company instituted proceedings in error in this court to reverse the judgment of the Court of Appeals, in so far as that judgment affected that company; and the. Erie-Huron Company proceeded in error tó this court to reverse the judgments rendered by the Court of Ap*317peals in favor of the cross-petitioners upon their several claims.

*Messrs. Dustin, McKeehm, Merrick, Arter é Stewart; Messrs. Schultz & Schultz*and *Mr. C. M. Horn,*for The Van Dorn Iron Works Co.

*Messrs. Young., Stocker & Fenner,*for The Erie-Huron Realty Co.

*Mr. Délo Mook; Messrs. Reed, Meals, Orgill & Maschke; Mr. J. B, Oviatt; Messrs. Ulmer & Berne; Mr. A. H. Fiebach; Mr. J. Rogers Jewitt; Mr. C. S. Bechberger; Mr. Milton S. Koblitz; Mr. Ralph R. Snow,*and *Messrs. Nolly & Carey,*for cross-petitioners.

Matthias, J.

The question of first importance in case No. 17705, wherein the Van Dorn Iron Works Company prosecutes error from the Court of Appeals, arises from the entry of that court in dismissing plaintiff’s first cause of action without prejudice. The entry discloses that such action by the court was based upon a finding that the plaintiff having failed to properly perfect its lien, as required by Section 8312, General Code, its claim for personal judgment must also be refused and the plaintiff left to its remedy at law, and such conclusion was based upon the ground, as therein stated, that that court has only equitable jurisdiction. The plaintiff by its first cause of action sought a judgment upon its claim, and by its second cause of action set up its claim for a mechanic’s lien.

In the court of common pleas all parties acquiesced in submitting the entire matter to the court without a jury, and the court, although finding against the *318plaintiff as to its claim for a mechanic’s lien, rendered personal judgment. From that judgment the Erie-Huron Company perfected its appeal to the Court of Appeals, and the theory of the Court of Appeals in the action taken by it is disclosed by the opinion of that court wherein its states:

“To permit such judgment to be entered would be to deprive a defendant of his constitutional right of a trial by jury.”

The first cause of action was not a proceeding in equity; it was an action at law in which a judgment for money was sought, and, in fact, rendered by the court of common pleas. True, the parties were entitled to a trial by jury, but that is a right which may be waived, either expressly or by proceeding to trial and judgment before the court without a jury. *(Bonewitz*v. *Bonewitz, 50*Ohio St., 373, 34 N. E., 332, 40 Am. St. Rep., 671.) And that is just what occurred in this case. In the opinion in the *Bonewitz case,*at page 378 of 50 Ohio St., at page 334 of 34 N. E. (40 Am. St. Rep., 671), it is said by Judge Spear:

“His [the defendant’s] objection to the mode of trial, we think, comes too late. To sustain his claim would seem to be trifling with justice. He proceeded to trial, without objection, to a eourt having jurisdiction of the parties, and capable of being clothed with jurisdiction of the subject-matter for all purposes, taking his chance of a favorable result, and cannot, now that the chance has turned against him, be heard to question the authority of the tribunal to which he consented to submit his cause.”

The judgment thus rendered can be reviewed only by a proceeding in error, except in the event of *319waiver of the question of jurisdiction under the rule laid down in the case of *Drake*v. *Tucker,*83 Ohio St., 97, 93 N. E., 534. It is disclosed, however, that the Yan Dorn Company not only did not waive such question, but was at all times objecting to the jurisdiction of the Court of Appeals to review its judgment in the appeal proceeding, and that court was right when it determined that “judgment for the amount claimed cannot be entered here”; but it was clearly wrong when it attempted by its entry to dismiss the plaintiff’s first cause of action, upon which judgment had been rendered in the court of common pleas. The Court of Appeals should have dismissed the appeal in so far as it affected the personal judgment of the plaintiff, and this court will accordingly enter such judgment of dismissal.

The proceeding in error prosecuted by the Van Dorn Iron Works Company presents the further question of the validity of its mechanic’s lien. It was held invalid by both lower courts by reason of the failure of the plaintiff to furnish preliminary statements as required of the original contractor's by the provisions of Section 8312, General Code. Such statements were in fact not furnished. It is claimed they were not required, for the reason that plaintiff was not a contractor, but a materialman, and therefore not governed by the provisions of Section 8312, General Code.

We concur in the view of the lower courts in this respect. The plaintiff was not a materialman within the definition of that term as set out in Section 8323-9, General Code. The claim which plaintiff asserts is based upon the execution of its accepted proposition at a stipulated price for furnishing and *320erecting two flights of pressed steel stairs, as therein specified, extending from the basement to the fourth floor of the building in question. The undertaking of the plaintiff was that of a contractor under the terms of our mechanic’s lien statutes, its undertaking being to erect a structure, or a portion thereof, wherein, necessarily, labor would be employed, and it, in our opinion, comes within the requirements of Section 8312, General Code. *Sterner*v. *Haas,*108 Mich., 488, 66 N. W., 348, and *Kerr-Murray Mfg. Co.*v. *Kalamazoo Heat, Light & Power Co.,*124 Mich., 111, 82 N. W., 801.

The principal question presented by the proceeding in error brought by the Erie-Huron Realty Company, being case No. 17710, relates to the agency of one Orr, and his authority to bind the realty company with reference to the transaction which forms the basis of this suit. No profitable end would be served by a review and analysis of the voluminous evidence touching this question.

It is sufficient to say that there is in the record evidence not only that the Erie-Huron Realty Company, through its president and treasurer, approved the contract of its agent, which in accordance with adopted plans was entered into with Orr for the improvement of this building, but also that the contract with Orr, under which he proceeded with such improvements, was thereafter duly ratified and approved by the company. In pursuance thereof the remodeling of this building, involving the expense of about $30,000, proceeded, and that building was only a short distance from the company’s own *321offices. There is ample evidence of the authority of Orr in this respect to support the judgment.

It has been so frequently announced that this court will not weigh the evidence upon which the findings of fact of the lower court are based that it scarcely needs repetition. In this case, therefore, the judgment of the Court of Appeals is in all respects affirmed.

*Judgment reversed in cause No. 17705.*

*Judgment affirmed in cause No. 17710.*

Marshall, C. J., Wanamaker, Robinson, Jones, Day and Allen, JJ., concur.