Holbrook v. Ives.

out consent of such head or sub-contractor, or material-man, he or they, or any of them, may proceed with the work, in accordance, however, with the terms of the original plan or contract, and on completion thereof, have either or all the remedies provided by this chapter."

The terms of this section are plain and need no construction.

If the work be suspended by the decease of the owner of the property, and such suspension is without the consent. of the head contractor, or of the sub-contractor, or of the material-man, he or they, or any of them, not consenting to the suspension, may proceed with the work in accordance with the original plan or contract. And on the completion thereof, such person or persons may have either or all the remedies provided in that chapter, including the benefits. of a mechanic's lien.

The facts found in this case are: That Maria Plant owned the leasehold estate and the buildings thereon; that "shortly prior to her death she had commenced the erection of a house on the east half of the lot, which, at the time of her death, was somewhat less than half completed;" that she had "adopted and approved" a plan for the house, which plan Thomas Plant had designed; that she had contracted with Holbrook to furnish and deliver certain lumber and material, in his line, necessary to build the house, and to deliver the same, from time to time, as required by Thomas Plant, the husband; that prior to her death a part of the material was furnished by Holbrook in accordance with their contract; and that the progress of the work was suspended by the decease of Maria Plant, the owner, without the consent of Holbrook, the material-man.

Thus every required precedent condition was fulfilled; and Holbrook, the material-man, did proceed with the work, in accordance with the terms of the original plan, and did complete the house.

It is claimed that Holbrook's contract with the owner deceased did not provide for the completion of the house by him. The language of his contract alone did not so provide;

Holbrook v. Ives.

but his contract was made under the provisions of section 3205 of the Revised Statutes, and the clear provisions of that statute became a part of the contract; and these provisions were of full force on the suspension of the progress of the work by the decease of Maria Plant.

"The laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of the contract, and this is so, whether such laws effect its validity, construction, discharge, or enforcement." Roberts v. Cocke, 28 Gratt. (Va.) 207.

"It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms." Mr. Justice Swayne in Von Hoffman v. City of Quincy, 4 Wall. 550.

It is also claimed that a mechanic's lien is an entirety, and that Holbrook could not have two such liens in this case.

If we concede the former claim, the latter one would not follow. During the life-time of Maria Plant, Holbrook could only furnish materials for the house; and, upon her death, for such materials furnished he could perfect his lien therefor as he did; and when her decease changed the obligations of the contract in its practical effect, Holbrook did proceed with the work both as a material-man and as a workman. This he had a right to do, by virtue of his contract and the provisions of the statute. For all he thus furnished and performed he could perfect his second mechanic's lien, unless in some way he was prevented.

Did the levy of A. Ives & Sons prevent or postpone Holbrook's second mechanic's lien?

This levy was for a judgment debt due A. Ives & Sons from Thomas Plant, the devisee of Maria Plant. Thomas Plant took the property subject to the debts of Maria Plant, and also subject to her contracts respecting this propertyincluding her contract with Holbrook, by virtue of which he obtained his second lien. The levy was only upon the property interest therein devised to Thomas Plant, and it is subject to this lien of Holbrook. A. Ives & Sons could

Railway Company v. Thurstin.

not obtain a better right or title than Thomas Plant possessed. The facts found, as to what agreements were made by Holbrook after the decease of Maria Plant, are important only as showing the utmost good faith on the part of Holbrook in his completion of the house under his optional contract to complete it; and, doubtless, such agreements were not necessary to enable Holbrook to secure his rights; but such agreements could not destroy his rights under the

statutes.

The facts found show there is no equity in the claim of the defendants in error.

This expenditure of $1,018.68 seems to have increased the salable value of the property at least $1,600, a profit of $581.32, which may inure to the benefit of the defendants. in error. And they need not have done otherwise than stand by and see this expenditure of money, as their levy did not prevent or destroy the rights of Holbrook.

The facts of this case show clearly the importance of such a statutory provision, and its great value to material-men, to contractors, and to such workmen.

The court erred in its conclusions of law, and there was error in affirming the judgment.

The judgments below are reversed, and judgment is rendered for S. S. Holbrook.

RAILWAY COMPANY V. THURSTIN.

Error-Findings of fact by trial court- Whether order of dismissal reviewable-Section 6710, Revised Statutes.

A motion to dismiss a petition in error upon the alleged ground that summons in error was not served nor appearance entered within two years after the rendition of the judgment below, was heard in the circuit court upon evidence and sustained. No bill of exceptions was taken, but the court stated upon the record the facts found from the evidence, and

Bailway Company v. Thurstin.

upon which the dismissal was ordered. Upon this record the plaintiff in error seeks a reversal in this court of the order of dismissal. Held: 1. Section 6710, Revised Statutes, does not authorize a finding of facts in such a proceeding.

2. The order of dismissal is not reviewable upon such record, and a motion to dismiss the petition in error is well taken.

MOTION to dismiss petition in error to the Circuit Court of Lucas county."

The defendant in error recovered a judgment against the plaintiff in error, The Columbus, Hocking Valley and Toledo Railway Company, in the court of common pleas of Lucas county.

To reverse this judgment the latter filed its petition in error in the district court.

After the lapse of two years the defendant in error moved the circuit court to strike the petition in error from the files and the case from the docket, for the reason that no service of summons had been made nor appearance entered within two years from the rendition of the judgment.

The motion was heard by the circuit court on affidavits and oral testimony.

The court granted the motion. The petition in error in this court is to reverse the judgment of the circuit court rendered upon this motion.

Certain facts which the court found from the evidence are recited in the record, and the contention of the plaintiff in error is that these facts did not warrant the action of the court upon the motion to dismiss. No bill of exceptions was taken showing the evidence upon which the court made its findings of facts. The circuit court did not pass upon the merits of the case as exhibited by the record of the court of common pleas, and no part of that record is in this court.

The questions now before this court for consideration arise upon the motion of the defendant in error to dismiss the proceeeding in error for the alleged reason that the court has no jurisdiction of the subject-matter.

Railway Company v. Thurstin.

The foregoing statement embraces as much as is necessary to present the question considered and disposed of by this court.

James A. Wilcox and Doyle & Scott, for plaintiff in error. Joshua R. Seney, for defendant in error.

OWEN, C. J. The solution of the question at bar rests upon the construction of section 6710, Revised Statutes, as amended May 4, 1885 (82 Ohio L. 230), which provides, among other things, that: " the supreme court shali not in any civil cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence; and on application of any party excepting to a ruling or decision of the circuit court, during the trial, or on motion for a new trial, such court shall find from the evidence, and state on the record, the facts upon which the alleged error arises or which may be material in determining whether error has intervened or not.”

It is maintained by the defendant in error that this court has no power to entertain this proceeding in error upon the finding of facts set forth in the record, in the absence of a bill of exceptions containing all the evidence upon which the circuit court disposed of the motion to dismiss. On the other hand, the plaintiff in error maintains that a bill of exceptions would have been an idle form, as the weight of evidence can not be reviewed by this court upon such bill; and that the only means of bringing such question before this court for review is by a finding of facts under section 6710, Revised Statutes. Conceding that a bill of exceptions would not require this court to review a judgment or order below upon the weight of the evidence, the fact remains that if such judgment or order be against the facts established by the uncontradicted evidence presented by the bill of exceptions, there would be power to review and reverse such judg ment as a question of law.

The question before us must turn upon the construction of so much of section 6710 as provides that "on application