Baylies et al. v. Sinex.

Bank v. Wallace, 18 Ind. 82; 1 Greenl. Ev. sec. 342; 1 Philip's Ev. 4 Am. ed. p. 84, et seq.

Per Curiam.-The judgment is reversed, with costs. Cause remanded for further proceedings.

Martin M. Ray, for the appellants.

S. Stansifer, C. E. Walker, and Geo. W. Richardson, for the appellee.

BAYLIES et al. v. SINEX.

STATUTES CONSTRUED-MECHANIC'S LIEN.-Under sections 647 and 648 of the code, on the subject of mechanic's liens, no lien can be acquired upon specific articles furnished for a building, as distinct from the building, but only upon the building in which they are placed, or on the land whereon they are placed, or both.

APPEAL from the Wayne Common Pleas.

WORDEN, J.-This was an action by Sinex against Blanchard, Bargeon, Baylies, Marchant and Baylies, upon promissory notes executed by Blanchard & Bargeon to the plaintiff, and to enforce a mechanic's lien.

The plaintiff manufactured for and sold to Blanchard & Bargeon a certain boiler, at the price of 455 dollars, and took their notes for the amount. The plaintiff also, within the proper time, filed in the recorder's office notice of his intention to hold a lien upon the boiler. The boiler was placed in or attached to a machine shop owned by Blanchard & Bargeon, and was used to propel the machinery by steam. The notice, however, did not claim any lien either upon the machine shop or the ground on which it stood, but simply upon

Baylies et al. v. Sinex.

the boiler. Prior to the sale of the boiler, Blanchard & Bargeon had mortgaged the premises on which the shop stood to one Pyle. This mortgage was duly recorded, and before the bringing of this suit was foreclosed and the premises sold, Baylies, Marchant & Baylies becoming the purchasers, and receiving the sheriff's deed therefor. The latter named persons were in the possession of the premises, including the boiler, when this suit was brought.

The Court rendered judgment against Bargeon upon the note, and that the boiler be sold, &c. Baylies, Marchant & Baylies appeal.

It may be observed that, if the boiler was so attached to the machine shop as to become a part of the realty, the title passed to the appellants, they having purchased under a lien prior to that of the plaintiff. But supposing the boiler be regarded as personalty, and as not passing under the sale thus made, the question arises whether the plaintiff could acquire a lien upon it as personalty, separate and distinct from the building or ground upon which it stood, under the provisions of the statute on the subject of mechanic's liens. The following provisions are the only ones that seem to bear upon the question:

"SEC. 647. Mechanics, and all persons performing labor, or furnishing materials for the construction or repair of any building, or who may have furnished any engine or other machinery for any mill, distillery or other manufactory, may have a lien separately or jointly upon the building which they may have constructed or repaired, or upon any buildings, mill, distillery or other manufactory, for which they may have furnished materials of any description, and on the interest of the owner of the lot or land on which it stands, to the extent of the value of any labor done or materials furnished, or for both.

"SEC. 648. The provisions of this act shall only extend to

Baylies et al. v. Sinex.

work done or materials furnished on new buildings, or to a contract entered into with the owner of any building for repairs, or to the engine or other machinery furnished for any mill, distillery or other manufactory, unless furnished to the owner of the land on which the same may be situate, and not to any contract made with the tenant, except only to the extent of his interest."

Section 652 provides, amongst other things, that the Court may, by the judgment, direct a sale of the land and building for the satisfaction of the liens and costs. 2 G. & H. p. 298.

It is evident that the 647th section, above set out, does not give a lien upon the engine or other machinery furnished, as distinct from the building, but only upon the building, or the lot or land upon which it stands. The 648th section is somewhat obscurely worded, but it does not, as we think, extend the remedy given by the preceding section, but rather limits or qualifies it. It limits the remedy given by the preceding section, first, to cases where work has been done or materials furnished on new buildings; second, to cases where contracts have been entered into with the owners of buildings for repairs; third, to cases where engines or other machinery have been furnished, &c., to the owner of the land; excluding all contracts with tenants, except only to the extent of their interests. Its object was, undoubtedly, to prevent a tenant from encumbering property with liens, except to the extent of his interest in the property. Lynam v. King, 9 Ind. 3.

We are of opinion that the statute does not give a lien on specific articles furnished for a building, as distinct from the building, but only on the building or ground on which it stands. This view is strengthened by the fact that provision is made for rendering judgment for the sale of the land and building, but none for the sale of property distinct from the land or building.

The Indiana Central Railway Co. v. Mundy.

Per Curiam.-The judgment below for the sale of the boiler is reversed, with costs.

Bickle & Burchenal, for the appellants.

H. B. Payne and J. P. Siddall, for the appellee.

THE INDIANA CENTRAL RAILWAY Co. v. MUNDY.

RAILROADS LIABILITY-EXEMPTION.-Where a person traveling on a railroad receives from the company a free pass, upon which is indorsed a statement that, "it is agreed that the person accepting this ticket assumes all risk of personal injury and loss or damage to property whilst using the same on the trains of the company," such indorsement or agreement does not cast upon such person any risks arising from the gross negligence of the servants of the railroad company in running the train; and it would seem that such agreement does not cast upon such person any risks arising from any negligence of the servants of the railroad company in running the trains.

APPEAL from the Marion Circuit Court.

WORDEN, J.-This was an action by Mundy against the company to recover damages for an injury received by him while riding upon a train of cars of the defendant, through the alleged carelessness of the agents of the company. Verdict and judgment for the plaintiff.

The facts are briefly these: The plaintiff shipped on board the defendant's cars, at Indianapolis, a steam fire engine, to be transported to Richmond, on which he paid the freight. He also, being desirous of accompanying the engine, with his assistant, procured from the company, without further con

The Indiana Central Railway Co. v. Mundy.

sideration than the freight on the engine, a pass, in the following terms, viz:

"CONDUCTORS: Pass free F. Mundy and S. Wicks from Indianapolis to Richmond.

(Turn over.)

J. S. NEWMAN,

"Pres't Ind. Central Railway Co."

On the back of which were printed the following words: "It is agreed that the person accepting this ticket assumes all risk of personal injury and loss or damage to property whilst using the same on the trains of the company."

About the time the train on which the engine was placed was about to start, the plaintiff entered a passenger carriage which was attached to the back end of the train, having inquired and being told that that car was going to Richmond. The train started with the carriage which the plaintiff had entered attached. The train proceeded a short distance when an employee of the company told the plaintiff to get into the car ahead if he was going in that train. The plaintiff went from where he was then standing and got his carpet sack, &c., and went out upon the platform of the car and stepped with one foot across upon the car ahead, but before he could get across upon the other car as directed, the passenger car slackened its speed and separated from the other, the pin or bolt connecting them having been withdrawn without the plaintiff's knowledge, and the plaintiff fell upon the track between the cars, and was run over and severely injured by the passenger car. The car was thus detached by an employee of the company for the purpose of leaving it.

A new trial was asked on the ground that the verdict was not sustained by the evidence, and because the Court erred in giving the fifth, sixth and eighth instructions, and in qualifying the fifth instruction asked by the defendant, as will be hereafter stated.

VOL. XXI.-4.