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The Savannah, etc., Company vs. Grant, Alexander & Company. plaintiffs being mechanics, and as to what sort of mechanics they severally were.

There was no point made here, that the plaintiffs had not substantially complied with the 1963d, and 1964th sections of Irwin's Revised Code, if the plaintiffs were otherwise entitled to their lien on the defenclant's road.

The court charged the jury as follows: “ This is an action in favor of Grant, Alexander & Company vs. The Savannah, Griffin and North Alabama Railroad Company. The amount to be recovered is not in controversy in the case. It is agreed that the plaintiffs are entitled to recover $17,510 90, with interest from 1st November, 1870, so that your duties on this branch of the case will be easily discharged. The main question in the case is as to whether the plaintiffs are entitled to the lien claimed by them on the defendant's road. When I shall have given you the law on this point of the case you will have as little difficulty as on the other. I am asked to give you in charge :

“ 1st. If you think the plaintiffs were mechanics when they contracted and did the work, still they cannot recover the lien unless they contracted in their capacity as mechanics. Although the contract does not designate the plaintiffs as mechanics, still if it shows by its very terms, they were employed to do mechanical work, then they were employed as mechanics and can so recover whether or not they did all the work with their own hands; and this is especially so if the defendants consented that the contract should be sub-let. This I give you in charge.

“20. I charge you, however, that if the contract was with the defendants to build and finish the construction of their road, its bridges, culverts and masonry, and the plaintiffs have been proved to be mechanics, and if they finished the road accorid ing to contract, it was a mechanical employment, and as it is with the court to construe the contract in writing, I charge you that the work to be done, by the terms of the contract, is mechanical, and whether the plaintiffs workel as such mechanics or not in the actual construction of the road, still, if

The Savannah, etc., Company vs. Grant, Alexander & Company.

they undertook to do mechanical work, and then they had the work done by other persons, they can recover as mechanics. And if you believe that the plaintiffs undertook, under and pursuant to this contract, to finish defendant's road as provided in the terms of the contract, and they did so finish it, this constitutes them mechanics and they would be entitled to maintain their lien and would be entitled to have this lien enforced for the sale of the road. Gentlemen, if you believe all the testimony in the case as given you from the stand by the plaintiffs, then you will find in favor of the lien.

“Gentlemen, retire and make up your verdict, unless you can find without retiring. (To counsel for plaintiffs)— You can write the verdiet in proper form.' (Counsel for plaintiffs)— Perhaps the jury had as well retire, and we can put the verdict in proper form when they come in.''

1. The plaintiffs did not bring their action against the defendant as mechanics, but brought their action against it as partners and contractors, and were not entitled to recover for a mechanic's lien, as such, as the record stood at the time of the trial; but as we feel constrained to reverse the judgment of the court below and order a new trial, that defect may be cured by an amendment of the plaintiffs' declaration.

2. The great and controlling question in the case, then, will be, when the plaintiffs amend their declaration, (as we think they may do, anil sue as mechanics for the enforcement of their alleged recorded lien, as provided by the 1964th section of Irwin's Revised Code, whether the contract set forth in the record was made by the plaintiffs with the defendant in the capacity of mechanics or in the capacity of contractors. Contractors may

be mechanics as well as those who are not mechanics. Were the plaintiffs mechanics, and did they make the contract with the defendant in the capacity of mechanics? If the plaintiffs were mechanics, and made the contract with the defendant in the capacity of mechanics, these facts may be shown by parol evidence, the same not being inconsistent with the written contract, and they may enforce their recor:led mechanic's rien, as provided by the before recited sections of Irwin's

Wright vs. Shorter.

Revised Code. But although the plaintiffs may have been mechanics, if they did not contract with the defendant to do the work in the capacity of mechanics, but made the contract with the defendant in the capacity of contractors, then they are not entitled to enforce a mechanic's lien against the property of the defendant. Whether the plaintiffs were mechanics, and made the contract with the defendant to do the work in the capacity of mechanics, or whether they made it in the capacity of contractors, were questions which should have been submitted to the jury under the evidence, without any expression or intimation of opinion on the part of the presiding judge as to what had or had not been proved in relation to those questions : Coile, section 3218.

3. Whilst it is true that the construction of a written contract, is a question for the court, still, the court is not presumed to know what is mechanical work done under a contract, to constitute one a mechanic, unless the presiding judges of the courts are to be considered as experts in regard to what does constitute a mechanic, mechanical work, and mechanical operations generally. We think it much the safer rule to leave these questions to the decision of the jury under the evidence of witnesses who may or may not be experts as to such questions, rather than to the decision of the presiding judge of

In view of the evidence contained in the record the charge of the court was error.

Let the judgment of the court below be reversed.

AUGUSTUS R. Wright, plaintiff in error, vs. ALFRED SHORT

ER, defendant in error.

(This case was argued at the last term and decision reserved.)

1. Where an imperfect plea, stricken by the court below, on motion or gen

eral demurrer, indicates strongly that there is in the facts a meritorious defense, this court will direct that the plea be reinstated on terms, and that the opportunity for amendment be allowed.

Wright vs. Shorter.

2. Dicta on the position of guarantors of payment, with reference to dili

gence by creditors, 3. A general guarantor of payment who has received value in negotiating a

note, is not discharged by judgment in favor of the maker in a suit upon the note, unless the judgment was the result of some fault or default in the plaintiff; and if the latter has pursued the case to an adverse termination in the highest court of this state, he is not bound to carry it up to the su

preme court of the United States. 4. When bridge and ferry franchises purporting on the face of the grant to be

exclusive, are conveyed by deed in fee simple, with warranty of title against the vendor and his heirs only, the purchaser, in the absence of any fraud in the vendor, takes the risk of the grant's proving exclusive or not ex

clusive in its legal operation. 5. If the grant purport to create franchises which are exclusive for three

miles up and down certain rivers, and the vendor represent them to be exclusive, and the price is fixed accordingly, both parties believing them to be exclusive, but being mistaken on account of a defect of legal power in the inferior court to pass exclusive franchises, the purchaser, when sued by the vendor for a balance of the price or upon a contract of guaranty involving such balance, cannot set up the non-exclusiveness of the grant as partial failure of consideration, nor as a ground of recoupment, although the value of the grant as it really is, be much less than the amount already paid on the price, and far less than the value would have been, had the grant been exclusive as it was supposed to be, there being no express warranty by the vendor that it was exclusive, and no fraud by which the vendee was de

ceived or misled. 6. As the grant in fact existed, although not exclusive, there was a subject

matter for the contract to operate upon. The circumstance that the grant is less extensive or less valuable than it was believed to be, does not negative the existence of the subject matter itself but only of some of its supposed attributes.

Practice in the Supreme Court. Guaranty. Promissory notes. Franchise. Roads and bridges. Grant. Warranty. Before Judge BUCHANAN. Floyd Superior Court. January Term, 1875.

Shorter brought assumpsit against Wright, on a written guaranty of the payment of a note on J. L. Cobb and James Morris, security, for $2,500 00, dated July 16th, 1861, and due at twelve months, with interest from date. This guaranty was dated August 14th, 1862, and embraced other notes transferred by defendant to plaintiff, but not involved in this suit. The defendant pleaded, in substance, as follows:

VOL, LVI. 6.

Wright vs. Shorter. 1st. That defendant had no notice of the non-payment of the note set forth above for three or four years, and in the meantime the makers became insolvent, though worth at the time of the guaranty $100,000 00; that, when the note was transferred, defendant informed plaintiff that it was given for negroes, and informed him also that he, defendant, bad been notified that the money was ready to be paid upon call, and that nothing was to be done but to present the note; that plaintiff not only failed to present it or call for the money, but avoided payment by carrying the note to Thomas county, his then residence being known to but few; that plaintiff so avoided the payment of said note because Confederate money, which was the usual currency at that time, and also when the contract was made, was below par; that defendant, having no notice of the non-payment of the note, supposed it paid.

2d. That the note was given for negroes, and such notes having been held void by the courts, the makers were released, and defendant, as guarantor, thereby discharged; that if he had received notice of non-payment, he would have paid it himself or caused it to be paid.

3d. That the consideration of the contract of guaranty had partially failed; that such consideration was a sale and conveyance in fee simple by plaintiff, with warranty against himself and his heirs only, of a half interest in certain described bridges and ferries, and bridge and ferry privileges; that the grant to plaintiff of such privileges by the inferior court purported to be exclusive for three miles up and down the rivers ; that plaintiff so represented them, and that both parties enstered into the contract of guaranty by mistake, with this understanding; that such privileges were not in reality exclusive, the supreme court having decided that the inferior court had no power to render them so; that the consideration has therefore failed to the extent of the difference in value between the exclusive franchises and franchises not exclusive, amounting to about $20,000 00 or other large sum. This plea also claims the right to recoup in behalf of defendant for such difference in value.

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