The herald., 1895-10-12

returned, and reported that distance OF
ninety feet could be covered from the
point where Mr.. Sharp stood, and as 1t
was only fifty feet to where the shooting
took place, it was easy within his range
of vision.
An adjournment was then taken TO $3.50
O'Clock this morning. The defendant
will probably be put on the stand to tell
his story this norning.
Another nechanics' Lien Decision
In the case of Albert Rozell ct al. VS..
R. P. Finch and Mrs. A. E. Luther ct al.
Judge York ha,[ Sha1 cd down an opin-
ion settling aSSther point in regard 10
mechanics liens, of which the main
points are ss follows:
1.-The plaintiffs sue to foreclose me-
Ghanics' lien; They are material men men,
entered upon contract TO erect the
building on which plaintiffs claim their
lien. And defendant, A. E. Luther, a
married woman, is the owner OF the build
ing and lands on which it stands. The
fact that Mrs. Ln.her is, and was at the
time when the contract was entered into,
a married woman, living with her hus-
band. was not pleaded; and, therefore.
section $40, @. G. p, requiring the join
der of the husband cannot be considered.
1.-The principal contention is over the
payment of 5000 made by defendant Finch
struction of defendant Luther's house.
That the payment was made. and made
with moneys furnished By Mrs. Luther.
here is no dispute. The plaintiffs contend
that the payment was conditional
lone of the plaintiffs receiv ed the mon
ey ant entered it on the firms blotter as
receipt from Finch on the Luther Job.
and rs such receipt it was carried into
the day book and ledger. The plaintiff
was informed of this entry by telephone
message from one of the plaintiffs, but
it was not known by the one who tele-
phoned who he was teiephoning to, or for
what purpose inquiry as to the entry was
made. The partner who received the
money and entered the receipt on the
books of the firm testified that whe
Finch paid the money it was agreed be-
tween him and Finch that ii Finch
should want any of the money he could
draw it back. Finch testities to the same.
Both testify that at Flnch's request Sl4O
of those moneys were thereafter returned
to Finch. Mr.. Luther, husband OF defendant
Luther, testified that the member of the
plaintiffs firm who made the entry in
the blotter told him that Finch had paid
plaintiffs $500 and added but he has
borrowed more than that amount of me.
Both of the plaintiffs testify that the
statement to Mr.. Luther was that the
payment was conditional. Mir. Luther
also testifies that Finch told him that
L
1t is unnecessary, as between plaintiffs
| and defendant, Luther, to determine
| whst the conversation actually was. De-
/ PENDANT Luther 10 liable only under the
| provisions of the mechanics lien law. Ii
| the amount was paid Internationally.
| then the re-payments to Finch by plain
| tlffs would not revive plaintiffs claim
against Defendant Luther. Ii tie $500
was paid by Finch to plaintiffs with an
understanding that in consideration
thereof plaintiffs would advance moneys
to Finch. the lien of plaintiffs against
tanto. For plaintiffs to take the money
| and retain the lien tor that amount it
m ust appear that plaintiffs received the
| money as deposit with the understand
| ing that hone of the same should be ap-
piled in payment until after all the re-
pyments theref;om had been made to
| Finch. In other words, If the money
was received as payment with no under
| standing as to the amount Finch should
| withdraw, the lien was discharged pro
tanto and no subsequent arrangements
between plaintiffs and Finch could revive
the lien. Much depends upon the exact.
ness of the understanding between plain
tiffs and Finch, for the distinction need
| be but slight to form conclusions radio
ally antagonistc. The most certain evil
dence is the entry in plaintiffs books.
| They are presumed to have made the en-
| tTV lueTe as tHeV uuuerSIOOu tuo tTduSdC-
! ton. Testimony to vary that entry pro-
duced by the plaintiffs in the interest of
plaintiffs and which Observation-Disclosures has
70 means of controverting. except by the
entry, should be weighed with great eau
ton, because of the union of fallibility of
the human memory and preJudlces whic h
selflnterest generally produces. The
slightest deduction from the force of the
words used makes the 5000 received by
plaintiff a payment and not deposit.
l think the entry in plaintiffs books sutfi
cient to sustain such deduction the refore
conclude that the $500 was paid on the
Luther job and credited thereon at the
time of payment and released pro taLto
plaintiffs lien. and that any repayment
tnerefrom by plaintiffs to Finch did not
reinstate plaintiffs lien against Luthsr.
"a contention has also arisen as to
whether all the lumber sold by plaintiffs
to Finch for the construction of the
Luther house actually went into the
Luther house. Defendant Finch has tes-
| titled that it all did 60 into the construc-
ton OF this house. He is best inform ed
as to whether the lum Der was or was not
He has, howver, shown that his men,
DRY Is deficient as to the disposition OF
some of this material. Building material
unnecessarily subject to waste IN the con
struction of building and some con-
tractors waste more than Others. Mate
|
for such waste. But where the waste as
contsnded is so disproportionate to the
work as to necessarily discredit the testi-
mony of the contractor that the material
was used in the construction of the
building, then such testimony will be
rejected and the fact found from evidence
of less positive character. Where,
therefore, the contractor testified to hav.
ing used 1926 feet G. V. rustic, and com
petent work men who have made measure
ment on the Job testified that HOO fee
only was used, the testimony of the con
tractor is rejected and the fact found ir
accordance with the testim ony of the ex
perts, making a difference on that item
of SILL in favor of defendant Luther
Other deductions made on the basis Of
over charges and proof that the lumber
charged was not used in the construction
amount to the sum of 1886.
1.-The amount admitted by Defendan
Luther to be due and deposited in cour
for plaintiffs is $1l9.7S. Plaintiff is, tn are
fore, entitled to judgment against defend
ant Luther in the sum or $133.73 ant
81. 65 paid for recording the lien and TO
a foreclosure and sale of the property
described in the complaint for the pay
ment of said amount adjudged to he due
and attorneys fees. Let judgment b,
entered accordingly.
In the Hands of the Jury