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should be granted at this time as to the use of the name or whether that remedy should await final hearing.

The affidavits put in by the defendants, in connection with the admitted facts in the case, satisfy me that it is highly improbable, if not quite impossible, that the defendants will succeed at the final hearing.

The cost and trouble of changing their name, by eliminating the word "Edison," will be slight, and if on final hearing they shall succeed in establishing their right thereto, the cost of restoring it will be equally slight.

I will advise a decree to that effect.

JANE VEITCH

υ.

JAMES CLARK, JOHN BOVE AND FREDERICK BRANDT,
partners, &c., et al.

[Filed July 9th, 1904.]

A building contract provided for payment of the contractor in four installments, the third "when the trim is on and the doors hung." The architect gave his certificate and the third payment was made, in good faith, before all the doors and trim were on, the work necessary to put them on being worth $70; but other work, worth $250, not necessary to be done before that payment was due, had been done. The architect, however, testified that in practice those words were not construed strictly, but indicated a certain stage of the work: that such stage had been reached, and that the doors and trim then off were ordinarily kept off till the last of the work, so as not to interfere with other work and to prevent their being marred.-Held, that there was no advance payment, within Mechanics' Lien law (P. L. of 1898 p. 539 § 5), providing that if the owner of a building liable to mechanics' liens shall, in advance of the terms of a building contract, make a payment thereon, and the amount thereafter due thereon is insufficient to satisfy notices served according to the act, he shall be liable as though such payment had not been made.

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On final hearing on bill, answer and proofs.

Messrs. McEwan & McEwan, for the complainant.

Mr. William Hackett, for J. Gahagan's Sons, defendants.

Mr. Augustus A. Rich, for other defendants.

PITNEY, V. C. (orally).

In this case Mrs. Veitch, having a contract to build a house, entered into between her and a Mr. Clark, a builder, has paid into court a sum of money, about $128, which she says is all that she owes Mr. Clark, and for which there are several claimants.

It is a bill of interpleader. There is no dispute between the claimants. The dispute is between them and Mrs. Veitch as to the amount which she ought to pay into court.

Her bill was filed for the purpose of being relieved and also to enjoin certain actions at law brought against her under the stop notices which were served by the three defendants, who are here acting in concert to defeat her claim.

The only question presented is as to whether she was justified in making the third payment under the contract of $1,000. The contract provided for four payments. Three of them were made in strict accordance with the certificate of the architect. Shortly after the making of the third payment ($1,000) the contractor threw up his hands and abandoned the job, and Mrs. Veitch, acting under a provision in the contract, finished the building at an expense of some six or seven hundred dollars, leaving in her hands, according to her account, the sum of money which she has paid into court.

The last payment provided for is $850, and it is out of that payment which she finished the building at an expense of between $600 and $700.

The contention of the defendants is that at the time the third payment of $1,000 was made it was not due under the terms of the contract, and hence that it was an "advance payment," and

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that under the fifth section of the Mechanics' Lien law she is liable to pay whatever is due these three persons who have made claims. Their claims exceed the amount of $128, which she paid into court, by $100 or $200. How much is it?

Mr. McEwen-By $1,000.

Mr. Rich-We only claim she is liable for a thousand, which we claim she prematurely paid, and the balance of the fourth payment.

The Court-They claim that the $1,000 payment, known as the third payment, was nugatory and that she must pay it over again so far as was necessary to pay their claims, and they claim under the fifth section.

Now, it requires no argumentation to show that the statute in question may be penal in its effect. The payment may have been made in perfectly good faith. If the law requires her to pay it over again, it has a penal effect, for anything that makes a person pay money which he does not owe is in its nature penal. That leads one to be careful how he applies the terms of that fifth section.

"5. If the owner or owners of any building or other property which by this act is made the subject of liens for or toward the construction, altering, repair or improvement of which labor or services have been performed or materials furnished by contract, duly filed, shall, for the purpose of avoiding the provisions of this act, or in advance of the terms of such contract, pay any money or other valuable thing on such contract, and the amount still due to the contractor, after such payment has been made, shall be insufficient to satisfy the notices served in conformity with the provisions of this act, such owner or owners shall be liable in the same manner as if no such payment had been made."

It is what is called the advance payment section. And the question is whether Mrs. Veitch has made a payment in advance of the terms of such contract. If she has, and made it in good faith, and has not paid Mr. Clark any more money than he has earned for her, and has to pay it over again, that is penal, in my judgment. And hence the court, in considering this statute, ought to be careful how they carry it to a point where its application will be penal. It was carried to that point in the case of Smith v. Dodge-Bliss Company, 59 N. J. Eq. (14 Dick.)

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584, and it was carried there because Mrs. Smith had gone security for one of the contractors to the materialmen, Burns & Company-when you come to look at that, it takes the edge off of the penal aspect of the thing.

In the case of Binns v. Slingerland, 56 N. J. Eq. (11 Dick.) 413, the party had accepted a draft in advance, which was in effect also going security for the contractor, and, while a very respectable minority, and I am not sure it was not a majority of the law judges of the court of appeals, agreed with my view below, the majority took the other view.

Now let us see, in the first place, whether Mrs. Veitch paid any money that had not been honestly earned by Mr. Clark.

It may be admitted that the precise terms of the contract, to the ordinary reader, had not been complied with. Those terms are: "When trim is on and doors hung." Evidently a provision which must have a liberal construction, because it would be quite impossible, without using a great deal of language for which no provision is made in the blanks in these contracts, to describe precisely by language which is not open to any room for construction or implication, just what the condition must be. But the language is general, and it is brief. "When the trim is on and the doors hung." Now, that means, in strict language, when all the trim is on and all the doors are hung. So far the contention of the defendants is right.

But against that comes the undisputed evidence of the architect, who has favored me with his evidence in this case, and I must say that it is very clear and frank and satisfactory, that in practice those words are not construed strictly; they indicate a certain stage of the work; they indicate the fact that the builder has got to a certain point; he has earned a certain proportion of the whole job; and a payment made under the circumstances intended to be described by that language is not payment to him before he has earned his money. He has put that much money's worth in the job; that is what the architect says. He says that it is practically impossible; that it would increase the cost unreasonably to hold that in every case the precise terms of the contract should be complied with; that

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different persons are working at the same time on the building always, and that is common knowledge. The work is classified and divided among different sub-contractors or sub-superintendents, whatever you choose to call them. There is a mason; there is a carpenter; there is a painter; there is a plumber; all usually have to be working together and interlacing and interlocking with each other. And it is apparently impossible in practice to carry forward the work in the precise order in which a contract may classify it. Circumstances may intervene to compel-make it convenient for the contractor to do some work that is not called for for the purpose of payments before that time has arrived, and it may be very convenient for him, and in the advance of his work, to leave out some little matter. Therefore, the architect says it is not the intention of this language to state precisely the point to which the work has advanced. It is a matter of substance, and not of technical language. That is what the architect says, I think, although perhaps he expressed it better than I have now.

He says that he did certify, on the 19th of September, to Mr. Clark, that he was entitled to the sum of $1,000, being the amount of third payment due, as per contract. He says all the doors were not then hung, nor all of the trim on, but he says that a certain part of it was left off which is usual to be left off. The particular parts were the front and rear doors, through which material is to be carried, and that if the doors were on they are in the way-they are liable to be scratched and particularly with regard to the trim in the vestibule, and the tiling, if there is any. It is always left until the very last.

And he says there were, besides, one or two little doors, of trifling value, which could not be made at that time because the precise size of the casing to hold those doors could not be determined at that moment in time to keep up with the rest of the work. They were what are called odd doors, I think. Then he says there may have been a door left off in the bathroom, in order to get the bathtub in, and a variety of those things which are a mere matter of accommodation for the progress of the work.

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