Obrázky stránek
PDF
ePub

case on the ground that plaintiffs never completed their contract.

Where a lease contemplated the erection of a building, provided for its reversion to the lessor at the expiration of the term, required the lessee to keep it insured and to rebuild in case of destruction, and provided for re-entry in case of default by the lessee, and, in addition, the lessor lived near the premises and saw the building from time to time, while it was being erected under a contract with the lessee, it was erected with her "permission" within the meaning of a local statute, and the contractor was entitled to a lien. Burkitt v. Harper (1879) 79 N. Y. 273.

Where a lessee of a building to be used as a roller skating rink took up part of the floor, which had become unsuitable for the purpose of a skating rink, and had a new floor laid, and there was evidence tending to warrant the inference that there was an understanding between the lessor's president and the lessee in relation to such repairs, and, in addition, the president had knowledge of the undertaking before the old boards had all been taken up, and before any of the new floor was laid, or any of the materials furnished for which the lien was claimed, but did not give the written notice of dissent authorized by the Maine statute, the finding that the lessor consented was warranted. York v. Mathis (1907) 103 Me. 67, 68 Atl. 746.

And where a lessee who had the leased building overhauled, painted, and decorated had one or two rooms decorated as a specimen of the work, and called the lessor's attention to the work, and told him that he was about to enter into a contract with the plaintiff for the decoration of the whole house, and, after making a contract, again told the lessor, and said that he (the lessor) ought to pay part of the expense, to which the lessor replied that he would see how well it was done, and, while the work was being done, the lessor was in attendance constantly, examining the work as it progressed, and was familiar with every detail, and frequently expressed

his admiration of the decorations and changes being made, and made no objection to what was being done, and soon after the work was finished retook possession for a default of the lessee, it was held that he had con sented to the work so as to give plaintiff a lien. National Wall Paper Co. v. Sire (1900) 163 N. Y. 122, 57 N. E. 293, 7 N. Y. Anno. Cas. 406.

Where a lease was made to the knowledge of the owner for the purpose of manufacturing ice, and contained an option to purchase, and the owner knew that the work of making an ice plant and building was going on, and did not dissent, it was held in the concurring opinion in Mason Ice Mach. Co. v. Upham (1898) 26 App. Div. 420, 50 N. Y. Supp. 197, that the evidence showed the lessor's consent to the erection of a plant and building such as might generally be supposed to be useful or necessary to the operation of an ice-manufacturing plant. The majority opinion does not discuss the question beyond saying that the evidence warranted, but did not require, a finding of consent.

Where a building was erected by a lessee, who had contracted to purchase the property from the lessor, and the lessor admitted that the lessee showed him the plans and specifications, and that he knew an old building had been moved to another part of the lot, and the lessee claimed that he showed the lessor the building contract and was expressly told by him that he might go ahead with the work, it was held that there was evidence to support a finding that the lessor consented to the building contract. Butler v. Flynn (1900) 51 App. Div. 225, 64 N. Y. Supp. 877, 7 N. Y. Anno. Cas. 403.

Where a vendor knew of a contract for the construction of a building, made by his vendee, at or about its date, and made no objection, the contract being made before any written contract of sale had been made, and he knew that the improvement was going on, and provided in his contract that, in case of default by the vendee, he should be entitled to retain all payments made and all improvements, a

finding that he consented, so as to subject his interest to a mechanics' lien, would not be disturbed. Kealey v. Murray (1891) 40 N. Y. S. R. 23, 15 N. Y. Supp. 403. The court said that it was very clearly his expectation and desire when he made the contract, and in contemplation of both parties, that a house would be built; that it improved the security, and might inure to his benefit; and that this he was willing to receive.

Where the vendor understood that the vendee was to erect a building on the land, and repeatedly told persons furnishing materials and labor that they would be paid, and urged them to go on with the work, it was held that there was such a consent on his part as entitled them to liens, under a statute requiring the work to be done with the privity and consent of the owner. Blight v. Ray (1893) 23 Ont. Rep. 415.

Where a contract for the sale of lots, made by the owner's husband, required the vendee to build houses on the lots, and provided that the vendor would advance money to the vendee for that purpose, and, on completion of the buildings, take a mortgage on the lots and the buildings for the purchase price and advances, and the vendor took an assignment of such contract from her husband, advanced money thereon, and knew that the buildings were being erected, and that labor was employed and materials furnished for that purpose, the labor was performed and materials furnished with her consent. Schmalz v. Mead (1891) 125 N. Y. 188, 26 N. E. 251.

In Kimball Bros. Co. v. Fehleisen (1918) Iowa, 169 N. W. 445, defendant assisted in financing the construction of a factory, and took title to the land on which it was constructed, and agreed to convey it to the proprietor of the factory on certain terms, and is treated in the opinion as a vendor. He and the factory proprietor contracted for the construction of the factory, and provision was made in the plans for a freight elevator. The freight elevator was installed by plaintiff under a con

tract with the factory proprietor after the completion of the contract for the construction of the building. After saying that there could be no lien as against defendant unless the elevator was acquired and installed with his consent or authority, the court held that as he saw it when delivered and being installed, and made no objection, and knew that it was the intention to put in an elevator, and that, in the construction of the building, an elevator was contemplated and required for its use and enjoyment, he consented to the procurement of the elevator, and plaintiff was entitled to a lien.

In Davis v. Humphrey (1873) 112 Mass. 309, it was, the intent of the parties when a bond for a deed was given that the purchaser should build a house on the lot; they had frequent conversations about the building before and after the bond was given; and the vendor knew the purchaser's arrangements for securing money for that purpose, and knew when the cellar was built. When the petitioner, who contracted to do the woodwork and furnish the necessary materials, began work, the vendor met him at the house and talked with his foreman about the lot, and was subsequently given oral notice by the petitioner that he intended to claim a lien, and it was in dispute whether he then declared that he would not be responsible. It was held that the question whether the work was done by petitioner with his consent was for the jury. court said that the consent might be implied from the knowledge of the party, taken in connection with his acts, purposes, and conduct as they appeared in the evidence.

The

In Brown v. Haddock (1908) 199 Mass. 480, 85 N. E. 573, both parties, prior to the conveyance of lots pursuant to a contract of sale, contemplated the erection of buildings thereon by the purchaser. The vendor had knowledge of the kind of houses to be erected, had seen the plans of the houses and approved of them, and had knowledge that the money was to be procured by the purchaser from a savings bank which was to hold first

mortgages on the property. He gave the lines for one of the buildings to an employee of one of the lienors, and saw the work being done prior to the conveyance, and knew that labor and materials were being furnished under contract with the purchaser for the erection of such buildings. The purchaser could not get any money from the bank until the buildings were up to a certain point, and the vendor knew that, and knew that he could not get any of the purchase money until the purchaser got the money from the bank. It was held that these facts warranted, if they did not require, a finding that the labor and materials were furnished with the vendor's consent.

And see also Garland v. Van Rensselaer (1893) 71 Hun, 2, 24 N. Y. Supp. 781, affirmed in (1893) 140 N. Y. 638, 35 N. E. 892, where one building a house under a contract with a vendee, "with the knowledge and consent" of the vendor, was held to have a lien under a statute giving a lien for improvements made with the consent of the owner; also Shaw v. Young (1895) 87 Me. 271, 32 Atl. 897, cited supra, under II. c.

IV. When does owner “knowingly permit" improvements.

Under the Illinois statute giving a lien to any person doing work under a contract with the owner or with one whom the owner has authorized or knowingly permitted to improve the same, it is held that an owner knowingly permits the tenant to improve the property if, knowing that it is being done, he fails to object. Loeff v. Meyer (1918) 284 Ill. 114, 119 N. E. 908; West v. Pullen (1900) 88 Ill. App. 620; Wertz v. Mulloy (1908) 144 Ill. App. 329; Friebele v. Schwartz (1911) 164 Ill. App. 504. But where the improvements were made for trade purposes, and not under any agreement with the owners providing for the making of improvements, the contrary was held in McRae v. Murdoch Campbell Co. (1900) 94 Ill. App. 105.

Thus, where a lessor had actual notice of the making of improvements by her lessee, and saw them in progress, and made no objection, it was held that she knowingly permitted them to be made, though under the lease no improvements were to be made without written notice to her, which had not been given. Loeff v. Meyer (1918) 284 Ill. 114, 119 N. E. 908. And where the owner knew of a verbal sale of her land by her husband and of the erection of buildings thereon by the vendee, pursuant to such sale, it was held that a mechanics' lien for materials in making the improvement could be enforced as against her. West v. Pullen (1900) 88 Ill. App. 620.

[ocr errors]
[ocr errors]

And in Friebele v. Schwartz (1911) 164 Ill. App. 504, involving improvements by a lessee, the court said that an owner, knowing an improvement is being made, must object to the improvement, and otherwise he knowingly permits the improvement, and thereby consents to the parties being entitled to a lien. There, however, seems to have been considerable evidence in this case to show a consent, and not mere knowledge of the improvement.

And in a case involving the question whether a remainderman had knowingly permitted improvements by a life tenant, the court said that he knowingly permits a thing to be done who, knowing that it is being done, and being present when he could object, and having an interest to object, does not object; and that still more does he knowingly permit it to be done if he takes part in doing it. Wertz v. Mulloy (1908) 144 Ill. App. 329.

But in McRae v. Murdoch Campbell Co. (Ill.) supra, involving improvements by a lessee for trade purposes, the court said that to knowingly permit improvements on property in the sense of a statute was something more than to have knowledge that the work was being done and refrain from forbidding or protesting against its being done. A. McT.

[blocks in formation]

New Jersey Court of Errors and Appeals - March 3, 1919.

(N. J., 106 Atl. 416.)

Criminal law-former conviction - robbery and murder.

1. A conviction of robbery is a bar to a subsequent prosecution for murder resulting from the criminal act done in the perpetration of the robbery, where the statute makes an undesigned killing in the perpetration of robbery murder.

[See note on this question beginning on page 702.]

[blocks in formation]

ERROR to the Supreme Court to review a judgment affirming a judgment of the Court of Oyer and Terminer for Morris County (Parker, J.) convicting him of murder. Reversed.

The facts are stated in the opinion of the court.

Mr. Charles A. Rathbun, for plain

tiff in error:

The plea of autrefois convict, which was overruled by the supreme court, and thereafter by the oyer and terminer, was in proper form.

Bishop, Directions & Forms, 2d ed. § 1042; 1 Bishop, Crim. Proc. §§ 745, 808; State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27; State v. Rosa, 72 N. J. L. 464, 62 Atl. 695.

Murder ensuing from the perpetration of a robbery, and the robbery, are one and the same offense.

State v. Cooper, 13 N. J. L. 361, 25 Am. Rep. 490; Johnson v. State, 26 N. J. L. 313; United States v. MacAndrews & F. Co. 149 Fed. 836; Wilcox v. State, 6 Lea, 571, 40 Am. Rep. 53; 1 Bishop, Crim. Law, 8th ed. 105107, 1060; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; Moundsville v. Fountain, 27 W. Va. 182.

Conviction of a lesser offense is a bar to prosecution for the greater.

Re Nielsen, 131 U. S. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672; Moore v. State, 71 Ala. 307; People v. Defoor, 100 Cal. 150, 34 Pac. 642; Wilson v. State, 24 Conn. 57; State v. Wondra,

114 Minn. 457, 131 N. W. 496, Ann. Cas. 1912C, 667; 12 Cyc. 280.

Inasmuch as the evidence on the trial of murder indictment would have been sufficient to convict under the first indictment for robbery, the murder prosecution is barred by the conviction of the robbery.

Whart. Crim. Pl. & Pr. 9th ed. 456, 471; 8 R. C. L. 143, § 128; 1 Whart. Crim. Law, 11th ed. §§ 508, 528.

The state could have so drawn the indictment that on the trial it could have convicted either of robbery or murder. Having elected otherwise, and prosecuted the robbery charge to conviction first, it is barred from prosecuting for the murder.

Whart. Crim. Pl. & Pr. 9th ed. § 467; Jackson v. State, 14 Ind. 327; Drake v. State, 60 Ala. 42; State v. Johnson, 30 N. J. L. 185.

The robbery was an essential ingredient of the murder. Without the violence by which the robbery was committed, there would have been no murder.

Whart. Crim. Law, 11th ed. 509, note 17; State v. Cross, 101 N. C. 770, 9 Am. St. Rep. 53, 7 S. E. 715; State v. Smith, 43 Vt. 324.

The robbery and murder are merged by our statute in cases where the death is the result of the robbery.

State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490; Cook v. State, 24 N. J. L. 846; State v. Webster, 39 N. H. 96; Graves v. State, 45 N. J. L. 347, 46 Am. Rep. 778; 4 Bl. Com. chap. 14, p. 201; State v. Meyer, 64 N. J. L. 382, 45 Atl. 779.

The defendant was only an accessory before the fact, and therefore was entitled to his discharge at the close of the state's case.

State v. Wyckoff, 31 N. J. L. 65; State v. Wilson, 79 N. J. L. 241, 75 Atl. 776; Jackson v. State, 49 N. J. L. 252, 9 Atl. 740, 7 Am. Crim. Rep. 80; 4 Bl. Com. chap. 14, p. 201; State v. Meyer, 64 N. J. L. 382, 45 Atl. 779; Graves v. State, 45 N. J. L. 347, 46 Am. Rep. 778.

The confession should not have been admitted, because it was not of an ultimate fact.

People v. Strong, 30 Cal. 157; Covington v. State, 79 Ga. 687, 7 S. E. 153; 1 Wigmore, Ev. p. 930.

Mr. John M. Mills, for the State:

A plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes are committed.

8 R. C. L. p. 134, § 139; Larson v. State, 93 Neb. 242, 44 L.R.A. (N.S.) 617, 140 N. W. 176; State v. Rosa, 72 N. J. L. 462, 62 Atl. 695; State v. Watson, 20 R. I. 354, 78 Am. St. Rep. 871, 39 Atl. 195, 11 Am. Crim. Rep. 24; Warren v. State, 79 Neb. 526, 113 N. W. 143; Morey v. Com. 108 Mass. 433; State v. Cooper, 13 N. J. L. 361, 25 Am. Rep. 490.

Kalisch, J., delivered the opinion of the court:

The facts which give rise to the fundamental question raised in this case are these: Mowser, the plainMowser, the plaintiff in error, with two companions, Herbert and McCracken, conspired together to rob one Richards. Mowser knew Richards; his confederates did not. On the night of the robbery, Herbert and McCracken lay in wait for Richards near the latter's home. Mowser came along and notified Herbert that Richards was coming up the street, and then proceeded on his way. As Richards came by, Herbert and McCracken followed him

for a short distance, and then Herbert felled Richards with one or two blows on the head with a piece of gas pipe, and robbed him. Richards died from the effect of his injuries at noon of the same day. Mowser was not present when the assault was committed, but was somewhere in the immediate vicinity. On May 8, 1917, the grand jury of Morris county presented an indictment against Mowser, in the statutory form, charging him of having on May 5, 1917, wilfully, feloniously, and of his malice aforethought killed and murdered Frederick Richards, at Dover, Morris county, etc. On the 8th day of May, 1917, Mowser was arraigned in the court of oyer and terminer, and pleaded not guilty to the indictment. Two weeks later the same grand jury presented a joint indictment, consisting of two counts, against Mowser, Herbert, and McCracken, the first count of which charges that they, "in and upon one F. R. an assault did feloniously make, and from the person of him, the said F. R., by violence and putting him in fear, did forcibly take a sum of money," etc. The second count charges the defendants with an assault with intent to rob. To this indictment, the defendants, upon being arraigned in the court of quarter sessions, pleaded guilty. On a later date Mowser filed a plea of autrefois convict to the indictment for murder, setting forth the substance of the indictment for robbery to which he had pleaded guilty, and averring that the indictment for murder is based upon the same facts and grew out of the same transaction.

The prosecutor of the pleas demurred to this plea, which raised the question whether a plea of a former conviction of robbery was a bar to a prosecution on an indictment for murder, where the homicide was the undesigned result of the perpetration of the robbery.

The trial judge certioraried the record into the supreme court to obtain its opinion on the question.

« PředchozíPokračovat »