I. The contract was simply to furnish certain specific articles of machinery; it was not for materials, or labor, for the construction or repairing of a building or superstructure.
When once the articles were delivered the contract was executed and complete, and the defendants had the right to sell it or destroy it. The case of Bottomby v. Grace Church, (2 Cal. 90) is decisive of this case.
In the case of McGreary v. Osborne (9 Cal. 120) the lien was given for work done in repairing machinery already erected and forming a part of the structure as fixtures. There is no analogy between that case and the case at bar.
The case cited from 2 Cal. 90 is sustained by the decisions of other Courts. (See Hill v. Elliott , 16 S. & R. 56.)
II. The referee in this case acted simply as a master in chancery. The order referring the cause required him only " to ascertain and report."
Thereport then, when made, was but an interlocutory stage of the cause; it was not final, or determinate, and to make it so it had to be confirmed by the Court. Accordingly the plaintiff moved for its confirmation, and the defendants to set it aside.
The enforcement of liens belongs exclusively to the jurisdiction of the Court of Chancery, and the Chancellor having the subject before him must decree upon the whole case. (McHenry v. Moore , 5 Cal. 92; Hill v. Saunders , 8 Id. 287; Dewey v. Bowman, Id. 148.) So that it is immaterial what may be the finding of facts of the referee, if they are unsustained by the record they will be disregarded.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
BALDWIN, Judge
On rehearing, Norton, J. delivered the following opinion. Field, C. J. and Cope, J. concurring.
A rehearing was granted in this case upon a petition suggesting that this Court had fallen into an error in its former opinion in supposing that the question as to the right to a lien had been affected by the admission of parol testimony, and did not depend solely upon the terms of the written contract. Upon reexamining the record we do not find that any error was committed by this Court in that respect.
In this Court the case is presented on the report of the referee, without any statement on motion for a new trial. The report of the referee consists of two parts--one being in the usual form of a finding of facts and conclusion of law, and the other being called an opinion, and consisting mostly of a discussion of the facts and law of the case and the reasons of the referee for his findings. In the former portion the referee finds as a fact, that " all the machinery mentioned in said contract 'A,' and in said schedule 'C,' was furnished by plaintiff to the defendants as materials for said building, and to be used in and about the same, for the purpose of altering the same and converting it into a sugar refinery, for which purpose said machinery was intended and designed and used." In the latter part of the report the referee says: " It may be noticed here that both parties, in the course of the trial, objected to evidence going to interpret the written contract. I admitted parol proof for three reasons--1st, to show by the acts of the parties their construction of the contract; 2d, to meet the counter claim of the defendants, and 3d, to the question of lien." It appears, therefore, that the question of lien was decided by the referee upon the effect of parol evidence going to interpret the written contract. If that portion of the report styled an opinion should not be considered as a part of the report properly so called, and hence not to be regarded, still, if we assume that parol evidence was admissible, we must presume, in the absence of any statement of the proceedings on the trial, that the finding was based upon sufficient evidence. Whether or not such testimony was admissible has not been discussed on this rehearing, and we do not propose to review the former opinion of the Court upon that point.
It is possible that on the motion for a new trial in the Court below the testimony in the case was used in the stead of a formal statement, and that Court may have considered that there was no sufficient parol evidence to sustain the finding as to the lien. But as the case is presented to us without any statement, we must take the finding as conclusive.
We, therefore, adhere to the former ruling of this Court, that the judgment be reversed and the Court below be directed to enter a judgment on the report of the referee.