Abraham Clark Freeman.

The American state reports: containing the cases of general value and ... online

. (page 62 of 121)
Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 62 of 121)
Font size
QR-code for this ebook

In Midland By. Co. v. Wilcox, 122 Ind. 85-92, the court used the fol-
lowing forcible and logical reasoning : " We cannot regard the reason-
ing of some of the courts, which hold that the right to a lien is a purely
personal privilege, as either valid or forcible. Statutes giving a lien
always intend to give a security for a debt, and this they generally ac-
complish. If the debtor gets what he contracted for. it cannot, in justice,
make any difference to him to whom he pays what he owes, nor to
whom the security created by law is assigned. It is often of great im-
portance to a contractor to be able to raise money to prosecute the work
under contract, and, in order to do this, to assign a claim secured by a
lien. The denial of the right to assign may o(ten seriously cripple and
hamper a contractor, and yet do no good to the debtor. If the one may
be benefited without the slightest injury to the other, there is no con-
ceivable reason why the law should not permit him to receive that
benefit by assigning his claim and lien. It is a sacrifice of justice to a
bald technical rule of the common law, little respected anywhere now,
to deny the right to assign the debt and with it the security the law

No particular form of words is necessarir to constitnte an assignment
of a mechanic's lien ; it is sufficient if the intent of the parties to effect
an assignment is clearly established : Skyrme v. Occidental Mill etc.
Co., 8 Key. 219. A number of liens may be assigned to one {wrson,
who may maintain a suit as such assignee on all of the liens in his own
name: Skyrme v. Occidental Mill etc. Co., 8 Nev. 219: Hoagland v.
Van Etten, 81 Neb. 292. Quite a number of cases hold that the lien of
a mechanic is a personal right which cannot be assigned or transferred :
Fitzgerald v. Trustees, 1 Mich. N. P. 243; Bradley v. SpofTord, 23 N. H.
444* 55 Am. Dec. 205; Horton v. Sparkman, 2 Wash. 165; Rollin v. Gross,
45 N. Y. 766; Rnggles v. Walker, 34 Vt. 468. On the other hand are a
few cases declaring that the lien of a mechanic for work and materials,
though fully perfected, is a personal right, and cannot be transferred or
assigned so as to enable the assignee to prosecute a suit thereon in his
own name, or otherwise avail himself of the benefit of the lien: Cald-
well V. Lawrence, 10 Wis. 331 ; Pearsons v. Tincker, 86 Me. 884 ; Tewka-
bury V. Bronson, 48 Wis. 581.

AsBioimxNT OF RioHT TO LivN. — On this topic also there Is a oon-
flict of authority, but the great majority of the cases maintain the
proposition that the assignee of a claim for work and labor or material
inmishe<i cannot file the notice required by law and thereby create a
lien. The right to create and perfect such lien is personal to the me-

Digitized by



ehanic and cannot be assigned. Even in moat of thoae Jariadictiona
where the perfected lien is capable of aaaignment, the mere inchoate
right to a mechanic's lien before the lien has been perfected by the fil-
ing of the claim, is not assignable: Roberts v. Fowler, 4 Abb. Pr. 203:
Rollin V. Opobs, 46 N. Y. 706; O'Connor v. Current River R, R., Ill
Mo. 185; Oriswold v. Carthage etc. Ry. Co., 18 Mo. Apjp. 52; Brown v.
Chicago etc. Ry. Co., 36 Mo. App. 458; Merchant v. Ottnmwa Water
Power Co., 54 Iowa, 451; Brown v. Smith, 55 Iowa, 31; Langan v.
Saiikey, 55 Iowa, 52; Goodman v. Pence, 21 Neb. 459; Noli v. Ken-
nealiy, 37 Neb. 879; Brown v. Harper, 4 Or. 90; McCrea v. Johnson,
104 Cal. 224; Mills v. La Verne Land Co., 97 Oal. 254; 33 Am. St. Rep.
168. The following reason has also been given for the rule : *' If the
mere assignment of the debt gave the assignee the right to aasert the
claim, then, in cases where portions of the debt were assigned to dif-
ferent persons, each must file a lien for the amount due to himself, and
thus, instead of one lien against the property, there might be fifty, or
an indefinite number, which would render the proceeding cunihersome
and oppressive. Before the assignment of the debt, therefore, will carry
the right to a mechanic's lien, it must be perfected by properly filing
the same in the office of the county clerk before the assignment is
made"s Goodman v. Pence, 21 Neb. 459-462. '*The lien is, in preneral,
a personal right given to the mechanic, materialman, and laborer for his
own protection, and the right to create it cannot be assigned or trans-
ferred to another, unless the assignment is made for the benefit of the
assignor, and to be held as his agent, so that the lien may be pre-
served": Rollin V. Cross, 45 N. Y. 667-771. The transfer by a person
entitled to a mechanic's lien, to another, of his account for materials
furnished, before he has filed his claim for a lien, destroys the right to
a lien, and confers no authoritvupon the assignee to file such claim and
perfect and enforce the lien: Noll v. Kenneally, 37 Neb. 879. If one
entitled to a mechanic's lien assigns the sum due him to another, as
collateral security for the payment of a debt, he still has sufficient in-
terest to entitle him to file a lien statement afterward within the stat-
ntory time, which will secure his equitable rights in the claim assigned,
and also inure to the benefit of his assignee; but If be makes an abso-
lute assignment, a lien statement filed by him on his own account
thereafter is void, and does not inure to the benefit of his assignee :
Davis V. Crookston Water Works Co., 57 Minn. 402; 47 Am. 8t. Rep.

A few cases maintain the rule announced in the principal case,
namely, that an assignee of the claim of a person entitled to a mechan-
ic's lien may make and file the lien statement and enforce the lien.
The transfer of the claim operates to assign the inchoate risht to a lien
which may be perfected by the assignee: McDonald v. Kelly, 14 R. I.
835; Mason v. Germaine, 1 Mont. 263. If a builder baa aasisned all his
interest in a building contract to another, and the owner of the prem-
ises has notice of the assignment, the assignee becomes the equitable
owner of the avails of the building contract and of the lien arising there-
from: Major V. Collins, 11 111. App. 658. A member of a j^rtnership
has a right to use the firm name in perfectins a mechanic's lien to
which the firm ia entitled, but of which he baa become the sole owner
by aasignment, before the lien is perfected : Jones v. Hurat, 67 Mo. 568.
A mechanic's lien accruing to a partnership ia not loat by the retire-
ment of one of the partnera and the takins a new member into the firm,
and the statement for auch lien may be filed within the atatatory time
by the new firm: Brown v. School Diat., 48 Kan. 709.

Digitized by


Oct 1894.] Thompson v. Dodok 68S

Thompson v. Dodgb.

[56 MIMNEBOTA, S65.]

ridlni: a bicycle upon the public highway haB the same rights Id ••
doing as peraons on horseback or using other vehicles thereon.

BIOYOLBS-RIGHTS ON HIGHWAY.— A bicycle is a yehicle,
and the riding of one upon the public highway, in the ordinary man-
ner, is neither unlawful nor prohibited by any principle of law.

BIGYOLE&-RIGHTS ON HIGHWAY.— It is not the duty of a
person lawfully traveling upon a public highway on a bicycle,
when he sees a horse and carriage approaching, to stop and inquirs
whether the horse is likely to be frightened* nor to anticipate tliat
such horse will be frightened. In the absence of any apparent reason
for so doing.

not be held liable for his acts, unless done in such manner and at such
tiu^e as to show that he is acting in disregard of the rights of others.
This rule applies to a bicycle rider lawfully traTeUng upon a publle

C. P. Carpenter^ for the appellant.

Hodgson & Schaller^ for the respondent

*^ BUCEj J. This action was commenced in justice's
court to recover damages for injury to the plaintiff's carriage
which plaintiff alleges was caused by the carelessness and negli-
gence of the defendant in riding and using a bicycle in the public
highway, whereby plaintiff's horse was frightened, and became
wholly nnmanageable and shied, precipitating the plaintiff,
horse, and carriage off from the grade and road into a swamp, and
damaging the carriage of plaintiff to the amount of fifteen

The plaintiff recovered judgment for fifteen dollare and costs,
but, upon appeal to the district court of Dakota county, the judg-
ment was reyersed, upon the ground that, conceding all of the
testimony introduced by the plaintiff to be true, the defendant
was not negligent. The decision of the district court was right.
It is true that upon a controverted question of negligence, where
different deductions or reasonable inferences might be drawn by
the jury from the conflicting evidence, the general rule is that
the finding of the jury should not be disturbed. But upon the
undisputed facts, or assuming the testimony of the plaintiff to
be true, it does not show a cause of action against the defendant.
A person riding a bicycle upon the public highway has the same
rights in so doing as persons using other vehicles thereon. A
highway is intended for public use, and a person riding or driv-

Digitized by


534 Thompson v. Dodgb. [Miniu

ing a horse has no rights superior to those of a person riding a
bicycle. In the use of a public highway there are certain righti
of the road which must be observed by all persons, and a ^'^
violation of those rights constitutes actionable negligence.
Bicycles are vehicles used now very extensively for convenience,
recreation, pleasure, and business, and the riding of one upon the
public highway in the ordinary manner as is now done is neither
imlawful nor prohibited, and they cannot be banished because
they were not ancient vehicles, and used in the Garden of Eden
by Adam and Eve. Because the plaintiff chose to drive a horse
liitched to a carriage does not give to him the right to dictate to
others their mode of conveyance upon a public highway, where
the rights of each are equal. The traveled grade where the
parties met was from ten to twelve feet wide, giving ample room
for the parties to have passed each other. General Statutes of
1878, chapter 14, section 1, provides that when persons meet
each other on any bridge or road, traveling with carriages, wagons,
sleds, sleighs, or other vehicles, each shall seasonably drive his
carriage or other vehicle to the right of the middle of the
traveled part of the road, so that the respective carriages may
pass each other without interference. This law appears to have
been complied with on the part of the defendant. If there was
not room to pass, it was as much the duty of the plaintiff to stop
as of the defendant, especially in view of the fact that he testified
that, when he discovered defendant riding toward him he antici-
pated that his horse would be frightened.

In his complaint, the grounds of negligence charged are thai
defendant did not stop riding toward plaintiff, and ascertain
whether plaintiff's horse was likely to be frightened, and by rid-
ing upon the road grade before plaintiff had time to drive off the
same. As the defendant had the legal right to be in the high-
way, and as there is no allegation in the complaint that the de-
fendant knew, or had any reason to believe or anticipate, that
plaintiff's horse would be frightened at defendant's bicycle, or
the manner in which he was riding the same, it does not charge
actionable negligence. It is not the duty of a party lawfiilly
traveling upon a public highway upon a bicycle, when he sees a
horse and carriage approaching, to stop and inquire whether the
horse is likely to be frightened, nor to anticipate that such horse
will be frightened, especially in the absence of any apparent
reason for so doing; and it appears from the evidence that de-
fendant was within five to ten feet of plaintiff's horse when he

Digitized by


Oct 1894.] Thompson v. Dodge. 535

noticed that the horse was frightened. When he first saw plain-
tiff, he was about seventy or one hundred feet away from him,
and riding at the rate of '"^ eight miles an hour; but, to
use his expression, he slowed up, and turned out to the edge of the
road next to the grass on the right side of the road, and only went
the length of the plaintiff's horse before he dismounted, and went
to the assistance of plaintiff, and rendered him such assistance as
he was able. There is not a single word of evidence going to
show any willful act of tort on the part of defendant, or that he
was riding his vehicle in any other than the ordinary way and
reasonable manner, or that he apprehended or anticipated any
fright on the part of plaintiff's horse. Simply because the plain-
tiff's carriage was injured by reason of his horse becoming fright-
ened at defendant's riding his rehicle does not impute negligence
to defendant. If defendant's act was not wrongful^ the result-
ing injury was not actionable. The plaintiff cannot be made to
pay or suffer for his acts, unless the acts done by him were done
in such manner and at such a time as to show that he was acting
in disregard of the rights of other' persons. This is not such a

The pleading and proof of a custom as to parties approaching
each other on the grade where this injury resulted are so wanting
in stating and proving all the essential elements neceesaiy that we
need not discuss this question.

The judgment appealed from is affirmed.

Oilfillan, 0. J., absent, took no part

a vehicle within the meaning of the law» and may be lawfully ridden
upon the public highway for oonvenienoe, recreation, pleasure, or busi-
ness s Extended note to Blepe v. Siting, 48 Am. St. Bep. 877, 878^ In
which the principal ease is cited.

Digitized by








Rapid Transit Railway,

[128 MmOTTBI, Sa.]

RAILWAYS— NBGLIGENCE.— An Instrnctlon that. If tbe plat-
form ateps used by a railway at Its station to enable passengers to
alight were such ai are ordinarily proTided for similar cars by
similar roada^ the corporation has satisfied the requirements of the
law, Is erroneoQS. It cannot excuse itself, nnless the appliances used
by it were reosooably safe, though they were sueh as bad tees
adopted and used by other railways.

KameSy Holmes & Erauthoff^ for the appellant

Robert Adams and J. N. Southern^ for the respondent

^ BOBINSON, J. This case is here on an appeal by de-
fendant from the order of the trial court setting aside a Terdict
and judgment, and granting to plaintiff a new trials for alleged
errors against the right of plaintiff in the giving of instnictions.

•^ The action was brought by plaintiff to recover damages
from defendant for negligence which resulted to his injury whfle
a passenger on one of its trains, in alighting at the town of In-
dependence. The alleged negligence consisted in not providing
necessary lights at said town, and in not providing ''safe steps or
platform for egress from its trains and from tbe car on which
plaintiff was tran8i)orted as defendant's passenger as aforesaid,
and in not giving plaintiff notice of the dangerous condition of
said landing place, and in not providing suitable steps for plain-
tiff's exit from the car on which he rode, or such as he had been
led to expect of defendant, and did not assist, or offer to assisi,
him in any way to alight from said train, and in letting him grope


Digitized by


Ihreh, 1895.] Douoherty v, Kaxbab City stc. R. T. Bt. 587

kis way out of said car in dense darknesB and ignorance of the
dinger it had subjected him to by reason^' of sach cazdesneii
and n^g^igenee of defendant.

After a protracted trial, the iaenes were submitted to a pay,
and a finding for defendant was made. Plaintiff moved for a
new trial, especially assigning as error the giving defendant's
third instmction. The motion was sustained, from which action
defendant appealed to this court The instruction is as follows:

'V the jury belieye, from the evidence, that the ligh^ if any,
in use at the station at Independence at the time of the accident,
whether provided by the defendant or from any other sources, was
enffident to enable passengers ezerdsing ordinary care and pru-
dence to alight with safety, then the requirements of the law were
ratisfied in that respect, and the jury are further instrueted that
ifthi defendant provided and used such platform steps to enable
the passengers to alight as were ordinarily provided for similar
ears on similar roadsy then^ in that respect^ it has satisfied the rs'-
quiremenis of the lawJ^

^ The italicized portion of the instruction is that of which
complaint is made. We think justly so. The first paragraph is
well enough, certainly in view of the tender of a similar declara-
tion by defendant.

The faulty portion of the instruction cannot be justified upon
any theory of law; it practically declares that if the platform
Btepa used by defendant at the place and time in question were
aach as 'Srere ordinarily provided for similar cars on similar
Toads,^ without regard to the question as to whether the appli-
ance was reasonably safe, dangerous, or otherwise, then plaintiff
cannot recover. The action of the lower court in promptly re-
pndiating its error is highly commendable.

It is not necessary to set out the evidence nor consider the
other points made. This error alone justified the court's action.
The issue was not what platform steps are ordinarily provided
for similar cars on similar roads, but whether the platform steps
of this particular road at the time when plaintiff was injured
were in a safe condition. The defendant cannot excuse itself
from the obligation to furnish its passengers with reasonably
safe appliances for getting in or out of its cars by showing that
the appliances it had adopted had been adopted and used by other
railroads engaged in a similar work. No amount of elaboration
would make the matter any plainer or the error in giving the
instruction any less: Hill v. Portland etc. R B. Co., 55 Me.

Digitized by


638 De Bebby v. Whbeleb. [Missoari,

438; 92 Am. Dec. 601; Cleveland v. New Jersey Steamboat Co., 5
Hon, 523; Humbird y. Union Street By. Co., 110 Mo. 76. Ths
action of the lower court in granting a new trial was correct and
fhis judgment is affirmed.

All concur.

FOR DEFECTS IN CARS.— It is the duty of carriers of passengers
to exercise a hi^h degree of care in providing all appliances necessary
for the safe carnage of those whom they nndertalre to carry. If injuries
happen to their passengers from the failure to perform this duty, the
carrier is liable therefor; Extended note to Ingails y. Bills, 43 Am.
Dec S62.

De Berry v. Whbbleb.

[123 MISBOURI, 84.]

to his wife is not fraudulent, as against his creditors, If the property
so conveyed was purchased with her separate estate, and she then
Intended to take title in her own name, though the deed, through
Inadvertence and mistake, was taken In the name of her husband.
In subsequently making the conveyance to her he but performed
his duty.

HER HUSBAND, estopped from chiimlng that lands standing la
hifl name were purchased with her separate estate, and with the
intention of then vesting the title In her, and that the conveyance
to him was made by inadvertence or mistake, if he was not engaged
in any hazardous undertakings or In any business prosecuted on

words or conduct, wiUfully causes another to believe in the existence
of a certain state of facts, and induces him to act upon that belief
80 as to alter his previous position to his prejudice.

Joel Funkhouser, for the appellant

Hiram Smith and William Henry, for the respondents.

*'' MACFAELANE, J. This is an action in the nature of
a creditor's bill, the object of which is to reach certain real es-
tate, the title of which was in defendant Caroline T. Wheeler,
wife of defendant William H. Wheeler, and subject the same to
'the pajonent of a judgment in favor of plaintiff and against the
said William H. Wheeler and others.

The evidence in brief disclosed these facts: Defendants, the
said William H. and Caroline T. Wheeler, were married about
the year 1884. The wife was then possessed of real and personal
property. The husband owned nothing. About the 18th ct

Digitized by


Maroh« 1895.] Dx Berry v. Wheeler. 689

Haich^ 1888, the said defendants sold a tract of land belonging
to the wife, and with proceeds of tlie sale bought the land in
oontroyeraj, the title to which, without the knowledge of either,
and through mistake or inadvertence, was taken in the name of
the husband. The fact that the title was so taken first came
to the knowledge of the wife five or six months after the date of
the deed. She at the time objected and insisted on a correc-
tion. There was at the time a deed of trust on the land, held
by eastern capitalists, and it was agreed between the husband
and wife that as soon as that was satisfied the correction should
be made.

^ On August 20, 1890, one T. R. Sheldon, as principal^ and
Sarah E. Sheldon and defendant William H. Wheeler, as sure-
ties, executed and delivered to plaintiff a note for three hun-
dred and seventeen dollars and fifty cents. Before taking the
note plaintiff was informed that defendant William H. Wheeler
was the owner of this land, and was good for the amount of the
note, and upon this information he loaned the money. Plaintiff
demanded payment of said defendant on the fourteenth day of
February, 1893.

On the 15th or 16th of the same month, in order to place the
title to said land in the wife, she and her husband executed a
deed to defendant Oliver Adams, and, on the same day, Oliver
Adams and wife by proper deed conveyed the land to defendant
Caroline T. Wheeler.

Plaintiff afterwards, in May, 1893, obtained a judgment on
said note, in the circuit court of Clinton county, for four hundred
and five dollars and seventy-five cents, against all the makers of
said note. Upon this judgment execution was issued and re-
turned nulla bona.

Tliis suit was then commenced to set aside the conveyances
from Wheeler and wife to Adams, and from Adams and wife to
said defendant Caroline T. Wheeler, as obstructions to enforce-
ment of the judgment under execution. The court found for
defendant and dismissed plaintiff's petition, and he appealed.

1. This record shows no intended fraud on the part of either
William H. Wheeler or his wife in transferring the title of the
property from the former to the latter. The evidence leaves no
doubt whatever that the property was paid for by money be-
longing to the wife, and that the purchase was made by her
husband under her direction and for her benefit. It is equally
clear that she intended, when the purchase was made, that the

Digitized by


&40 De BeBBY v. WfiX£L£B. [MiSBOUlly

title ahoiild be Tested in hendf and not in her hiiabaiid. Then
18 also doubt whether the hneband ^ directed that the deed
flhould be made to himself. However that may be^ the prop-
erty belonged in equity to the wife, and it was the duty of the
husband to restore it to her. No con^deration, other than the
mere execution of the trust, was necessary. There was no more
fraud on the face of this transaction than would be found in pre-
ferring the wife as a creditor to other of his crediton, whidi
we have held that the husband had the undoubted right to do:
Hart y. Leete, 104 Mo. 385; Biley y. Yaughan, 116 Mo. 176; 38
AuL St. Bep. 586.

The statute on the subject of fraudulent conveyanoes only
applies to the fraudulent transfer of the estate and intoest of
the debtor in the property, and has no application to a cmmj-
ance made solely for the purpose of transferring to the rightful
owner property held in trust for him.

2. But it is said that, as plaintiff loaned the money <m the
faith of the credit the apparent ownership of the land gSTe the
husband, the wife is now estopped to deny that the absolute title
was in him. On this proposition plaintiff chiefly rdiee for a

The eyidence does not show that at any time from the pQ^
chase of the land to the conveyance to the wife, the husband

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 62 of 121)