Winder v. Caldwell.

by way of defalcation or set-off, but for the purpose of defeating the plaintiff's action in whole or in part, and to avoid circuity of action. Without noticing the numerous cases on this subject, it is sufficient to say that the cases of Withers v. Green, (9 How. 214,) and Van Buren v. Digges, (11 How. 461,) decided in this court, are conclusive of the question. The court below, therefore, erred in the rejection of the testimony offered.

3. The remaining bills of exception, involve, in fact, but one prominent and important question, and the decision of it will dispose of this case.

The right to file a "mechanic's lien," as it is usually denomi nated, is claimed by the plaintiff, under the act of Congress of March 2d, 1833, entitled, "An act to secure to mechanics and others, payment for labor done and materials furnished, in the erection of buildings in the District of Columbia." The first section of this act, defines the persons who shall be entitled to this peculiar security and remedy, as follows:

"All and every dwelling-house, or other building, hereafter constructed and erected within the city of Washington, in the town of Alexandria, or in Georgetown, in the District of Columbia, shall be subject to the payment of the debts contracted for, or by reason of any work done, or materials found and provided by any brickmaker, bricklayer, stonecutter, mason, limemerchant, carpenter, painter and glazier, ironmonger, blacksmith, plasterer and lumber-merchant, or any other person or persons employed in furnishing materials for, or in erecting and constructing such house or other building, before any other lien which originated subsequent to the commencement of such house, or other building. But if such dwelling-house or other building, or any portion thereof, shall have been constructed under contract, or contracts, entered into by the owner thereof, or his or her agent, with any person or persons, no person who may have done work for such contractor or contractors, or furnished materials to him, or on his order or authority, shall have or possess any lien on said house or other building, for work done, or materials so furnished, unless the person or persons employed by such contractor to do work on, or furnish materials for, such building, shall, within thirty days after being so employed, give notice in writing to the owner or owners of such building, or to his or to their agent, that he or they are so employed to work or to furnish materials, and that they claim the benefit of the lien granted by this act."

Does a master-builder, undertaker, or contracter, who undertakes, by contract with the owner, to erect a building, or some part or portion thereof, on certain terms, come within the letter or spirit of this act, or within any of the classes enumerated, as

Winder v. Caldwell.

entitled to this special remedy? Such persons have an opportunity, and are capable of obtaining their own securities. They do not labor as mechanics, but superintend work done by others. They are not tradesmen in lumber, or other materials for building, but employ others to furnish materials. If such contractor should by accident be a carpenter, or an owner or vendor of lumber, yet he deals not with the owner in this capacity, but as an undertaker, who has covenanted for his own securities.

The title to this act shows its policy and intention. It is to secure, to "mechanics and others, payment for labor done and materials found;" and the persons enumerated in the first section are, plainly, those mechanics and tradesmen whose personal labor or property have been incorporated into the building, and not the agents, supervisors, undertakers, or contractors, who employed them. The act contemplates two conditions, under which such labor and materials may have been furnished: First, on the order of the owner, who may act without the intervention of any middleman, and thus become indebted directly to his mechanics and tradesmen. Or, secondly, when they have been furnished on the order of a contractor or undertaker. In such cases, the mechanic, or material-man, if he intends to look to the credit of the building, and not to that of the contractor with whom he deals, must give notice to the owner of the building, within thirty days, of his intention to claim this security. The contractor, though mentioned in the act, is not enumerated among those entitled to its benefit. The aim and policy of this act is also obvious. Experience has shown that mechanics and tradesmen, who furnish labor and materials for the construction of buildings, are often defrauded by insolvent owners and dishonest contractors. Many build houses on speculation, and after the labor of the mechanic and the materials are incorporated into them, the owner becomes insolvent, and sells the buildings, or encumbers them with liens; and thus, one portion of his creditors are paid at the expense of the labor and property of others. Or, the solvent owner, who builds by the agency of a contractor or middleman, pays his price and receives his building, without troubling himself to inquire what has been the fate of those whose labor or means have constructed it. These evils required a remedy, and such a one as is given by this act. Its object is, not to secure contractors, who can take care of themselves, but those who may suffer loss by confiding in them. It is not the merit of the contractor, that gave rise to the system, but the protection of those who might be wronged by him, if the owner were not compelled thus to take care of their interests before he pays away the price stipu

VOL. XIV.

38

lated.

Salmon Falls Manufacturing Company v. Goddard.

But the contractor is neither within the letter nor the spirit of the act.

A question has been made in the argument, whether the act of Maryland, of 19th of December, 1791, formerly in force in this district, is supplied or repealed, by the act of Congress now under consideration. But as the proceedings in this case are not within or under the act of Maryland, the question is not before us for decision. The plaintiff claims his right to support this proceeding, under the act of Congress alone, and if that fails him, his only resource is to his action on his contract. That he has mistaken his remedy, the court entertain no doubt.

If precedent were needed to justify this construction of the act of Congress, it may be found in the reports of the Supreme Court of Pennsylvania, where similar legislation has always received the same construction. See Jones v. Shawhan, 4 Watts & Serg. 257; Hoatz v. Patterson, 5 W. & S. 537, &c.

4. It is unnecessary to notice particularly the exception to the form of the judgment. It is certainly not in the form required by the act; and although the act may be construed to prescribe the effect rather than the form of the judgment, there is no reason why the form should differ from the effect; or that, in words, it should give the plaintiff any thing more than the law gives him, viz. execution of the property described in the scire facias. The judgment of the Circuit Court is, therefore, reversed, and venire de novo awarded..

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause, be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.

THE SALMON FALLS MANUFACTURING COMPANY, PLAINTIFF IN Error, v. WILLIAM W. Goddard.

"un

The statute of frauds in Massachusetts, is substantially the same as that of 29 Car. 2, and declares that no contract for the sale of goods, &c., shall be valid, &c

Salmon Falls Manufacturing Company v. Goddard.

less some note or memorandum in writing of the bargain, be made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." The following memorandum, viz.: "Sept. 19, W. W. Goddard, 12 mos. 300 bales S. F. drills, 7; 190 cases blue do. 8. Credit to commence when ship sails; not after December 1st, delivered free of charge for truckage. The blues, if color satisfactory to purchasers. R. M. M. W. W. G."-is sufficient to take the case out of the

statute.

If the terms are technical or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain the meaning.

It was competent also to refer to the bill of parcels delivered for the purpose of explanation. It was made out and delivered by the seller, in the course of the fulfilment of the contract, acquiesced in by the buyer, and the goods ordered to be delivered after it was received.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts. The facts are set forth in the opinion of the court, and also the rulings of the Circuit Court. The bill of exceptions extended over thirty pages of the printed record.

It was argued by Mr. Goodrich, for the plaintiff in error, and by Mr. Johnson and Mr. Davis, with whom was Mr. Choate, for the defendant in error.

The points made by the counsel for the plaintiff in error, were the following:

I. The evidence before the jury was competent and sufficient to authorize them to find that the bill of parcels had been adopted, recognized, and acted upon by the defendant, as the contract between himself and the plaintiffs.

II. The bill of parcels constitutes a contract known as a bargain and sale, by force of which the title to the property passed, without delivery, without payment of the price. It purports on its face a sale in presenti.

III. The paper signed by the defendant, dated 19th September, (Record, p. 11,) is a sufficient compliance with the statute of frauds, and the first position taken, and the first instruction asked in the court below, should have been sustained.

Addison on Contracts, 80. "It is not necessary that all the particulars of the contract should appear upon the face of the written memorandum. Any note, acknowledging the fact of the sale, mentioning the name of the vendor and the thing sold, and signed by the purchaser or his agent, will take the case out of the statute."

Penniman v. Hartshorn, 13 Mass. 87; Egerton v. Matthews, 6 East, 307, as to the description of the goods being sufficiently certain.

Even if it should be considered essential that the particular

Salmon Falls Manufacturing Company v. Goddard.

bales and cases should be selected, this was done, and thereupon the writing attached. See Record, p. 13, letters. The first letter set apart No. 8180 to 8679. The 100 cases blue drills were set apart at the counting room of Mason & Lawrence, on 11th October.

The second letter called for No. 8480 to 8679-200 bales, thus leaving set apart, 300 bales from No. 8180 to 8479.

In considering this position and instruction, the plaintiffs relied upon their usage, to require notes upon all sales made upon credit, which was known to Goddard.

This usage was competent, as constituting a part of the contract, as one of the incidents of the credit which was given.

Hutton v. Warren, 1 Mees. & Wels. 466; Grant v. Maddox, 15 Id. 737; Syers v. Jonas, 2 Wels. Hurls. & Gor. 111. In an action for the price of tobacco sold, evidence is admissible to show that by the established usage of the tobacco trade, all sales are by sample, although not so expressed in the bought and sold notes. Tibbets v. Sumner, 19 Pick. 166.

The contract is certain as to the parties, as to the number of bales, the price per yard, so that the amount of the purchase may be computed.

It is well established that a signature, by initials, is good; but the fact, whose initials they are, must be settled by the jury, upon proof. So, also, it is submitted, that it is the province of the jury to determine the character in which the parties signed. It was for them to say whether Goddard, by signing his initials and writing underneath the provision as to credit, and that the contract as to the blues might be abandoned, if color not satisfactory to the purchaser, is or is not sufficient, and was designed by the defendant to designate himself as the purchaser. That he did so design, is apparent, also, from the fact that his name is written at the top of the paper, prior to that of any other person.

In determining this question, it is competent for the jury to look at the situation of the parties and of the property, in aid and in explanation of the paper, for the purpose of attaching or locating the paper.

Whether a party signed as a witness, or as a party, is often determined from the location of his signature upon the paper.

Higgins v. Senior, 8 Mees. & Wels. 844. It may be shown that a party, whose name does not appear upon the paper, is bound as a contracting party, where an agent signs his own name instead of that of the principal.

Why not show, upon the same principle, or infer from the paper, the character and purpose in and for which a party signs? The provision in this paper, that the goods are to be delivered