Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1888-03-23

Far This section brisk northwesterly, backing
:. fire h s,utherly winds. slightly warmer, fair
westher
INTERESTING DECIsIoN.-As stated in the
GAZETTE Judge Keith in The Circuit Court
f,r his city, yesterday delivered his opinion
in favor of the plaintiff, in the case of Aitch.
..o, 4 Bro w. J. w. Summers ct. al. Col
/. Smith represented the plaintiff and
,,sir. G. A Mushbsch the defendants. The
81 owing is the opinion, which will be of
interest to many:
Aicheson & Bro,
I5lu W summers ct. ais.
Tue facts OF this case are few and simple,
aui ihoss upon which my judgment rests
are undisputed. The defendant, Summers.
contracted with Sioutenburg, house build.
- TO construct q house for him upon Ger.
r,ip lot in the City of Alexandria.
Stoutenturg ordered portion Of the ma
teflaI 10 BE- used in the construction Of the
house from john w. Peake, at that time
merchant in this city, whose business 1t was
10 furnish supplies used in the construction
OF houses.
Peake not having the goods ordered in
stock, contracted With the plaintiffs to fur
pi.h them The plaintiffs beyond doubt
furnished tho materials to the amount
claimed f3r the construction of the house
erected by Sicutenburg for Summers, and
ina materials so furnished entered into the
construction Of said house. Whether fur
nished Immediately by plaintiffs to Stouten-
burg, the builder or delivered in the first
place to Peake and By him actually deliv-
cred TO Stonlenhurg, in my opinion, Is i'm
material Equally immatarial Is it that the
goods were charged by plaintiffs to Peske
in q running account, aud that efforts have
since been Inedc 10 collect the ptce of the
goods Of Peake Peake is. OF course, psrsc-
6slly responsible 70 plaintiffs because the
goods were delivered at his request
The house is responsible bscause PLAINTIFF
furnished materials for its construction. TIE
lind section OF Chapter l15, Code of 1878,
creates the lien, while Section 4 of the same
chapter, as amended by Acts of 1883 4, pro
yldes the remedy for the enforcement of the
right
Section . creates lien in behalf
of the builders-that 10 to say of
contractors eud cub contractors, while
section extends the lien to AL arli-
sans. builders. mechanics. lumber dealers,
and Others performing labor or furnishing
materials Tor The construction" OF building.
Section requires that the contract shall
be in writing, signed by the party owning
or having an interest in the land on which
the building is to be erected, and must be
admitted to record The lien given by sec
ton 8 need not be in writing need not in
deed be an express contract, but may be i'm
piled from the circumstances of the case.
The last clause of section provides that
where the materials are furnished for repairs
only, no liens shall attach unless the repairs
we're ordered by the owner of the property
or his agent; the plain implication from
which, is that where the materials are used
in the erection AMI not in the repair OF
building, the contract need not be with the
owner of the land. This conclusion seems
to be strengthened by the provisions of sec
tlous 3 and declaring the mode in which
notice of claim On part of those furnishing
materials is given TO owner OF house.
OF course if an express contract between
the party furnishing materials and the own.
er OF the land is necessary to the existence
o; creation OF the lien, then notice would be-
come unnecessary.
There is g very strong equity IN favor OF
the nlen who furnishes labor or materials in
the erection or repair of & building upon the
land of another, and the object of this
salute is TO enforce that equity
That it may he attended with some it,
conyepience or even hardship in particular
cases is highly probable, but that it is beneh-
cent in its objects cannot be questioned, aud
whatever difficulties experience may point
out in !ts operation can be remedled by the
legislature.
Summers, the owner of the land, and
Stoutenburg, the builder, have DO interest
in this coutroversy-a sufficient sum having
been by them retained 10 inset this demand
The question is one between Peake, or rath :
err his assignee, Mr.. Musbbach, and the
plaintiti-betweeD the merchant who re-
ceiyes an order for supplies which he is un-
able to fill, and the merchant who, at his
request, actually furnishes the materials.
DO not think it difficult to determine be,
tween these two claimants which has the
better equity.
M objection is taken in the argument to
the manner in which the plaintiffs have
sought to perfect and enforce their rights.
They seem to have done al that the law
prescribes as necessary on their part, and
have therefore refrained from any discussion
Of those sections of the statute which refer
to the remedy. but have contented myself
with considering the sole question present.
ell in argument, 10 wit: Whether or NOT,
uudsr The facts disclosed by the record, the
Plaintiffs were 10 position TO create lien
upon Tue building of Summers for supplies
furnished by them and used il lis construc-
tjoi
am of opinion that plaintiffs are entitled
TO the relief they ask.
The SPECIAL ELECTION held in the Third
ward Yesterday to fiji vacancy in the Com
mo ~ tt,o anrt n