COURT OF CHANCERY OF NEW JERSEY

Garrison v. Borio
47 A. 1060 (N.J. Ch. 1901) • 61 N.J.E. 236
Decided Jan 16, 1901

This bill is filed under the lien act of March 30,

01-16-1901
1892 (2 Gen. St. p. 2078), to secure the payment
GARRISON v. BORIO et al. of laborers, etc., furnishing materials and doing
work on public improvements, etc. The
Walter H. Bacon, for complainant and for
complainant alleges that he supplied building
defendant Smith Tomlin. William A. Logue and C.
stone used for the construction of the foundation
H. Sinnickson, for defendant. Burd P. Evans.
of an Insane asylum in Cumberland county; that
Samuel H. Richards and Thomas E. French, for
he furnished this material to Borio & Stelacio,
defendant. Tony Stelacio. Samuel Iredell, for
subcontractors who had agreed with Burd P.
board of chosen freeholders of Cumberland
Evans, the original contractor with the board of
county.
freeholders for the whole work, to do the
foundation stone work and furnish material
GREY, V. C.
therefor. The work was begun and had made some
(Syllabus by the Court.) progress, when, on or about May 5, 1899, Borio
ran away with a considerable payment of money
Bill by William C. Garrison against James Borio made to him on account of his firm. This incident
and others to secure payment to laborers under the was the occasion of most of the subsequent
lien, act of March 30, 1892 (2 Gen. St. p. 2078). difficulties. Stelacio, who theretofore had not been
Order allowing lien. actively engaged in the erection of the asylum,
Walter H. Bacon, for complainant and for came to Bridgeton after a few days and proceeded
defendant Smith Tomlin. with the mason work. Stelacio continued at the
work, Garrison continuing to supply stone, until
William A. Logue and C. H. Sinnickson, for some time in June, 1899, when Stelacio
defendant. surrendered because he was unable to complete It
Burd P. Evans. Samuel H. Richards and Thomas About July 9, 1899, Evans, the original contractor,
E. French, for defendant. himself undertook to finish the work left undone
by Stelacio, and the complainant thereafter
Tony Stelacio. Samuel Iredell, for board of chosen furnished material to Evans until the foundation
freeholders of Cumberland county. walls were completed. The whole dispute in this
case turns upon the claim of the complainant for
GREY, V. C. (orally). I can dispose of this case
payment for the materials—mostly foundation
now. I have heard with attention the testimony and
stone—supplied by him and used in the asylum
the arguments of counsel, and find no need for
building. The differences raise questions both of
further consideration of the matters submitted,
law and of fact. The complainant files his bill
save as to the part which may be sent to a master.
under the statute of March 30, 1892 (2 Gen. St p.
2078), contending (1) that Evans, the original

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 Garrison v. Borio 47 A. 1060 (N.J. Ch. 1901)

contractor, guarantied the payment of the price for I find as an established fact that the contract for
the stone furnished by the complainant to Borio & furnishing stone, etc., for the foundation wall,
Stelacio; (2) that under the above-named statute originally made between Garrison, the
the complainant has a lien for the price of the complainant, and Borio & Stelacio, was between
material furnished to Borio & Stelacio upon all those parties and none other; that from the
that part of the contract price which is still unpaid beginning of the building to the time Borio ran
by the board of freeholders to Evans; and (3) that away, in May, 1899, and thence until Evans
he has a lien upon that fund for the price of the actually undertook to complete Borlo & Stelacio's
material furnished to Evans after Borio & Stelacio contract, on or about July 8, 1899, all of the stone
had abandoned their contract. The defendant delivered at the asylum by Garrison was furnished
Evans denies liability of any sort whatever, as under his contract with Borio & Stelacio, except a
guarantor or under any lien, for the debt of Borio small portion for which Evans gave a written
& Stelacio. He admits liability for the material order; that the defendant Evans did not in fact
furnished to himself after they had abandoned the guaranty the payment by Borio & Stelacio, or by
work, but denies the complainant's right to a lien, Stelacio, of either the whole or any part of their
because he says he has claimed more than is due. debt to Garrison. These findings of fact make it
Evans also contends that the statute does not unnecessary to consider the effect of the statute of
authorize Garrison to lien upon the original frauds upon the alleged parol guaranty by Evans
1061 contract price for the debt owing*1061 him by of the payment by Borio & Stelacio of their debt
Borlo & Stelacio, and he disputes the quantity of to Garrison. Evans' liability for material which
stone claimed to have been delivered by the should have been furnished by Borio & Stelacio
complainant, and pays into court the amount began when Garrison, about July 9, 1899, received
which he admits to be due from him. There is from Evans a letter telling him that he (Evans)
another small claim, for digging, etc., set up by the would go on with the work, and directing Garrison
defendant Smith Tomlin, which is also alleged to thereafter to furnish stone to him. The contract
be a lien under the statute quoted. The dispute between Garrison and Borio & Stelacio provides
regarding this Tomlin matter is principally as to for the delivery of the stone "at the site of the
the quantity of work which should be paid for by asylum." Delivery there, in the absence of express
way of lien. All of the contracts are in writing, agreement otherwise, passed the title to the
except the alleged guaranty of Evans to pay Borio delivered stone to Borio and Stelacio. If any
& Stelacio's debt. Garrison testifies that this was remained on the ground when Evans undertook
by parol assurance, claimed to have been made at the completion of the contract, it was the stone of
the time when Garrison, the complainant, and Borio & Stelacio, and not of Garrison, and must
Borio & Stelacio made their agreement. As to the be accounted for to them, and not to him. Their
written contracts, their terms are so definitely failure to pay for the stone did not remit the title to
expressed that their meaning can be readily it to Garrison. I also find as a fact that all of the
ascertained by mere reference to the contracts money due from Evans to Borlo & Stelacio for
themselves. The nature of the case is such that work done and materials furnished by them under
there should be a reference to a master to ascertain their contract with Evans was by the latter paid to
and report the precise amount due and lienable. At them, or by Evans expended for them in
the present time I will only dispose of such furnishing the work and material which they had
questions of law and fact as may aid the master in agreed to supply by that contract, and that this was
giving definite shape to his report. so disbursed by Evans before the lien was filed on
December 6, 1899, in this matter by the
complainant. I am free to say that, after the most

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 Garrison v. Borio 47 A. 1060 (N.J. Ch. 1901)

careful attention to the evidence, while it is quite material furnished to Borio & Stelacio, and in
clear that the portion of the stone furnished by support of this view cites the case of Reeve v.
Garrison to Evans was used in the building, I am Elmendorf, 38 N. J. Law, 125, as in point, and
quite unable to fix with certainty the point of contends that the complainant's bill, even if there
separation between that portion of the stone be an existing lienable debt due him from Mr.
furnished by Garrison, which he delivered to Evans for part of the money clawed, should be
Borio & Stelacio, and that subsequently delivered dismissed because of the complainant's demand of
to Evans on the latter's personal undertaking of the 1062 more than is due him. The rule declared*1062 in
contract. Consequently it is difficult to calculate Reeve v. Elmendorf is based upon the provisions
the quantity furnished to Evans, and to compute of the third section of the old mechanics' lien act,
the price to be paid, and thus fix the balance which which require that the amount demanded of the
is owing by Evans to Garrison. For this reason I contractor should be the amount due; and the
propose, unless the parties can themselves come to owner, under the terms of that act, must be
an agreement as to the amount, to refer the matter notified to retain this amount, and no greater sum,
and all the testimony here taken to a master for and it seems to have been enforced only when
further inquiry. There was also some proof of claims are made under that act. In Delaware, L. &
special orders for particular items of material W. R. Co. v. Oxford Iron Co., 33 N. J. Eq. 203,
given in writing by Mr. Evans. I will make an this court held the rule not applicable to the claim
order advising a reference to a master to ascertain of laborers for wages set up under the sixty-third
and report upon these matters, allowing the section of the corporation act. In the very recent
parties, if they desire, to make additional proofs on case of Camden Iron Works v. City of Camden (N.
these points; that is, the quantity of work and labor J. Ch.) 47 Atl. 221, which was a claim filed and
done and material furnished by Mr. Garrison to sought to be enforced under the same act of 1802
and for Mr. Burd P. Evans, for the purpose of now before me in this cause, Vice Chancellor
building the asylum, ordered in writing by Mr. Reed held that, if it was shown there was a
Evans, or delivered at the asylum after the date fraudulent purpose to impound a sum larger than
when Mr. Evans personally undertook the that which was definitely known to be due the
completion of the contract previously made claimant, the court would refuse its assistance to
between himself and Borio & Stelacio, and finally such a fraud, but that where the course of the
abandoned by them in June, 1899. cause indicated that the party and his counsel
deemed the larger claim, as asserted, to be worthy
A very interesting and forcible argument has been
of submission to judicial determination, the fact
made here upon several points of law, which
that it was found to be partially invalid did not
should be now determined.
brand the whole claim as fraudulent and discharge
The answer of the defendant Evans asserts that the the lien. I shall follow this method of enforcing
complainant has an adequate remedy at law, but the provisions of the act of 1862.
the court of appeals, in Construction Co. v. Sayre,
It is quite evident that the complainant Garrison's
60 N. J. Law, 449, 38 Atl. 666, held that this court
action in insisting that Mr. Evans is responsible for
was the proper forum in which to enforce the
the moneys due Garrison under his agreement
statutory remedy under the act of March 30, 1892.
with Borio & Stelacio is the result of the advice of
The counsel for Mr. Evans also insists that the counsel that his claim against Evans as a guarantor
complainant has forfeited his remedy by lien by of the Borio-Stelacio debt was a disputable matter,
claiming from Mr. Evans payment for that portion worthy to be submitted to this court for
of the complainant's claim which is owing for adjudication. I find that is a mistaken contention,

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but, if it is a mistake, it is not one which would privity with the contractor. It does not provide, as
justify the court in refusing to entertain that does the act of 1802 now under consideration (see
portion of the claim against Evans which is section 8), for what is practically an interpleader
admittedly due. This debt of Evans to Garrison for suit, bringing all claimants into court, and fixing
the stone expressly ordered by the former is by judicial decree the amounts severally due to all
admitted by Evans himself to be within the persons who furnish materials used in the
purview of this statute. Evans has himself come building. The title of the act of 1892 declares it to
into court, and here tendered the amount which he be an act to secure the payment of "persons
admits is due to Garrison. There is some testimony employed upon or furnishing materials towards
which indicates a disposition on the complainant's the performing of any work in public
part to color the proofs to establish Mr. Evans' improvements," etc. The scope of the act, thus
liability for the Borio & Stelacio debt, but I do not defined by its title, is quite wide enough to include
think it sufficient to justify the refusal of relief on all classes of persons who do work or furnish
that part of his claim which is separable, and materials, whether for the original contractor or
admittedly due from Evans. The complainant's for any subcontractor, however remote from him.
overdemand is probably not in the amount The first section is quite as broad in declaring the
claimed, but in his assertion that Mr. Evans is extent of the lien as is the title in declaring the
debtor not only for his own, but also for the Borio object of the act. It enacts that any person, who, as
& Stelacio, debt. It is probable that the total sum laborer, mechanic, merchant, etc., in conformity
claimed by Garrison for the material furnished is with the terms of any contract for a public
due him. His error is in his contention that Evans improvement made between any person and any
owes it all. I find against him on this point, but municipality, performs labor or furnishes material
hold that the setting up of the claim, and failure to towards the performance of any such contract,
establish it, do not justify a forfeiture of his right shall, on complying with the second section of the
to enforce his lien on the admitted debt of Evans act, have a lien upon the moneys in the control of
to him. the said municipality, due or to grow due under
such contract, and these liens may become
The counsel for Mr. Evans insists that the statute
absolute to the extent of the amount due or to
must be construed to limit the lien to persons in
grow due on the contract, in favor of every person
privity with the original contractor who agrees to
who shall be employed or furnish materials to the
build, and that the debt of a contractor in the third
person with whom the contract with the
degree, in which class he places Garrison (that is,
municipality is made, or the subcontractor of the
one who contracts, not with the original
said person. The counsel for the defendant Evans
contractor, but with his subcontractor), cannot be
insists that this section gives the lien in favor of
enforced under the act of 1802 now under
but two classes of persons: First, those who may
consideration; and he claims that the principles
be employed to furnish work or material to the
applied by the court of errors in Carlisle v. Knapp,
original contractor; and, secondly, in favor of the
51 N. J. Law, 329, 17 Atl. 633, should govern this
subcontractor of the original contractor. In my
case, also. That decision was made under the
view, this construction departs from the fair
mechanics' lien act, and held that the third section
meaning of the words used. The context of the
of that act afforded no remedy to one who
1063 section appears to declare a lien in favor of*1063
supplied materials to a subcontractor. The decision
every person (observe, their class is not defined)
depends upon the peculiar provisions of the statute
who is employed to furnish work or material either
which is expounded. That act limits the right to
to the original contractor or to the subcontractor of
impound the contract price to those in immediate
the original contractor. This construction of

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section 1 accords with the object of the act as the building, but when the original contractor, at a
declared by its title, and secures payment of the time when no lien notice was on file, has once
claims of all persons of the classes recited in the paid a subcontractor for materials furnished and
title. The first section creates a preferred claim in used in the building under a contract, he has
favor of those who are employed to furnish work discharged the unpaid contract price from liability
or material either to the contractor or to the to lien for those materials, and he cannot be
subcontractor, and charges it by the mode compelled to pay over again for the same
provided in the statute, upon the amount due or to materials. The stone furnished by Mr. Garrison to
grow due on the contract with the municipality. Borio & Stelacio had been paid for to them by
The second section prescribes the incidents of the Evans long before Mr. Garrison filed his lien
claim. The fifth section declares the time when notice. This is, in substance the construction given
this preferred claim shall attach as a lien, and by the supreme court of New York to the same
limits the extent of it to the liability of the statute. In Brainard v. Kings Co., 84 Hun, 290, 32
contractor for the claim preferred; that is, the N. Y. Supp. 311, the creditors of a subcontractor
unpaid contract price is, when notice of the claim filed a lien for work performed by them for the
is filed, charged with a lien for the price of subcontractor. It was held that they must show that
materials furnished by any person, but the extent the contractor was indebted to the subcontractor in
of the lien is the liability of the contractor to pay some amount, and that this amount was the extent
the claim to which the statute gives a preference. of their lien. If it appeared there was no such
Take this case as an illustration. The claim of indebtedness of the contractor to the
Garrison for material furnished to the subcontractor, the creditors of the latter could have
subcontractors, Borio & Stelacio, would, under the no lien. It should be noticed that the seventh and
statute, be a preferred claim upon the fund eighth sections of the statute of 1892 provide for a
consisting of the contract price unpaid to Evans. proceeding to enforce the lien against the fund
The lien attaches at the date of the filing of the which is in the nature of an interpleader, and
claim, and to the extent of Evans' liability then recognize the possibility of parties to such a suit
existing for that claim, not by any contract on "against whom no personal claim is made." So
Evans' part to pay it but because it has been section 8 provides that the court, on the suit for the
preferred by the statute. The preferred claim enforcement of the lien, shall determine the
referred to in the fifth section is the right to be amount due from the contractor to the responsive
paid for the stone furnished to the building. It is claimants. This does not refer to amounts due
given to Garrison by the statute. Evans accepted under the personal agreements of the contractor,
his contract with the municipality subject to the but to what is due under the preferred claims given
preference given such claims under existing law. by the statute on the fund. It has been declared by
But, Evans, having, by his contract with Borio & the court of errors in Construction Co. v. Sayre, 60
Stelacio, been entitled to pay them for the very N. J. Law, 449, 38 Atl. 666, that there should be
materials for furnishing which the claim is made no personal judgment in suits on these liens.
by Garrison, and having actually fully paid them
I will dispose of this matter as follows: Unless
before any lien notice was actually filed by
before February 11, 1901, the parties shall agree
Garrison, has no further liability for this statutory
upon the amounts due the complainant, I will then
preferred claim; nor can the contract price unpaid
advise a reference to a master to ascertain and
to him by the municipality be held to pay it. In
report the amount due from the board of chosen
short, my view of the true construction of the
freeholders of the county of Cumberland to Burd
statute is that the statute will support a lien for
P. Evans, remaining unpaid December 6, 1899,
material furnished to a subcontractor and used in

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 Garrison v. Borio 47 A. 1060 (N.J. Ch. 1901)

and also what sum is due or to grow due to the

said complainant from the defendant Burd P.
Evans, under the findings expressed in this
opinion, for work and labor done and material
furnished by the said complainant to the said
asylum at the request of the defendant Evans;
specifying the quantity of work and material, and
the price thereof, and allowing credit for all
payments made thereon, stating the account and
ascertaining the balance of money due to the said
complainant in that behalf. I do also find as an
established fact that the defendant Burd P. Evans
is indebted to the defendant Smith Tomlin, agent,
for work and labor done by him, on Evans' order,
on the said asylum building, for a balance
amounting to the sum of $28.50, with interest
thereon from June 13, 1899, to March 2, 1900, to
be added. The master shall be guided by the
opinion pronounced in this case. The admissions
in the pleadings and the testimony received in this
case may be used before the said master, and such
additional testimony, on the matter referred, as
either party may submit The master may apply for
further instructions, if necessary. Questions of
costs to any of the parties and all further equity are
reserved until the coming in of the master's report,
or until final decree, if the parties agree as to the
amount due Mr. Garrison.