
142 U.S. 128 (1891)
VAN STONE
v.
STILLWELL & BIERCE MANUFACTURING COMPANY.
No. 113.
Supreme Court of United States.
Submitted November 25, 1891.
Decided December 21, 1891.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.
*132 Mr. S.M. Stockslager and Mr. Samuel M. Boyd for plaintiff in error.
No counsel appeared for defendant in error.
*133 MR. JUSTICE LAMAR, after stating the case, delivered the opinion of the court.
It is manifest from an inspection of this assignment that it is entirely too general to meet the requirements of the 21st rule of this court. It was evidently framed with reference to the code practice of the State in which the cause was tried; but nothing is better settled in this court than the proposition that "in regard to ... bills of exceptions, courts of the United States are independent of any statute or practice prevailing in the courts of the State in which the trial was had." Fishburn v. Chicago, Milwaukee &c. Railway Co., 137 U.S. 60. We shall, however, refer to the errors assigned, in detail, more for the purpose of showing the insufficiency of most of them, under the rule, than to go into the merits of the case upon the questions thus attempted to be raised.
It requires nothing more than a mere statement to show that the first error assigned is without foundation. Under the pleadings as framed and the issues thus made up, it was not only not error for the court to admit evidence in the case, but it would have been a grave error to have refused to allow the admission of evidence. Moreover, the record fails to show that any objection of any kind or character was made by plaintiff in error to the introduction of evidence.
With respect to the third and eighth errors assigned, it may be said that they are as untenable as the first. A general demurrer to the evidence was interposed by the plaintiff in error at the close of the testimony offered by the plaintiff below, *134 (defendant in error,) and the same was overruled, to which ruling an exception was taken and duly noted. There had been some evidence offered in support of the contention of the plaintiff, and the weight of it, under the law, was for the jury to determine. It is not specified wherein the evidence offered was improper or irrelevant to prove the issue; and in the absence of such showing we are bound to presume that the court committed no error in this respect. The assignment is too general, under the rule. Moreover, such a motion or proceeding is addressed more to the discretion of the court than to the merits of the cause. In the language of this court in Suydam v. Williamson, 20 How. 427, 436: "A demurrer to evidence is defined by the best text writers to be a proceeding by which the court in which the action is depending is called upon to decide what the law is upon the facts shown in evidence, and it is regarded in general as analogous to a demurrer upon the facts alleged in pleading. When a party wishes to withdraw from the jury the application of the law to the facts, he may, by consent of the court, demur in law upon the evidence, the effect of which is to take from the jury and refer to the court the application of the law to the facts, and thus the evidence is made a part of the record, and is considered by the court as in the case of a special verdict. A mere description of the proceeding is sufficient to show that it is the evidence, and nothing else, that goes upon the record. Since it was determined that a demurrer to evidence could not be resorted to as a matter of right, it has fallen into disuse; and as long ago as 1813 it was regarded by this court as an unusual proceeding, and one to be allowed or denied by the court in the exercise of a sound discretion under all the circumstances of the case;" citing Young v. Black, 7 Cranch, 565; United States Bank v. Smith, 11 Wheat. 171; Fowle v. Common Council of Alexandria, 11 Wheat. 320. Being a matter resting in the discretion of the trial court, the action of that court in the premises is not assignable for error.
With respect to the fourth error assigned, it is sufficient to say that the overruling of a motion for a new trial in the court below cannot be assigned for error, and no authorities need be cited in support of the proposition.
*135 The second error assigned is equally vague and without merit. It could not have been error on the part of the court to submit the cause to the jury upon the evidence adduced. The evidence was relevant upon the issues as framed, and the weight to be given to it lay with the jury, who were the proper arbiters of the facts in the case. There was a general exception to the charge of the court as a whole, but such an exception cannot be considered here, under well-settled rules of law. Lucas v. Brooks, 18 Wall. 436; Burton v. West Jersey Ferry Co., 114 U.S. 474. The verdict was responsive to the issues, and the judgment of the court followed, as a matter of course. Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592, 598.
The fifth and sixth alleged errors go more to the merits of the action than any we have yet considered. "A motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose." Bond v. Dustin, 112 U.S. 604, 608; Carter v. Bennett, 15 How. 354. To bring the case within this rule it is argued that no evidence was offered tending to show a compliance on the part of the plaintiff or its assignor with the mechanics' lien law of Missouri; and that, upon the verdict rendered by the jury, the court was without authority to enter up a judgment recognizing and enforcing such a lien. It is manifest that the motion in arrest of judgment can be sustained only upon the theory that the court was without any authority to enter up a judgment recognizing and enforcing a mechanics' lien upon the property, since that would be the only defect upon the face of this record which we could consider upon such a motion.
The argument against the right of the court to enter up a judgment recognizing and enforcing a mechanics' lien is based on the theory that the contract between Schupp and Van Stone, under which the mill was built, providing, as it did, for the payment of the price in instalments to become due after the time limited by the statute (9 months) within which an action to enforce the lien is required to be commenced, which deferred payments were to be secured upon real estate of the plaintiff in error, was an express waiver of the lien, and *136 the breach of that contract by Van Stone did not restore to the contractor his right to claim a lien.
This argument rests upon a misconception as to the nature and character of a mechanics' lien. This lien is a creature of the statute, and was not recognized at common law. It may be defined to be a claim created by law for the purpose of securing a priority of payment of the price and value of work performed and materials furnished in erecting or repairing a building or other structure, and as such it attaches to the land as well as the buildings erected thereon. 15 Amer. & Eng. Encyc. Law, 5. Now, it is not the contract for erecting or repairing the building which creates the lien, but it is the use of the materials furnished and the work and labor expended by the contractor, whereby the building becomes a part of the freehold, that gives the material man and laborer his lien under the statute. The lien is brought into operation by virtue of the statute, and the contract for building is entered into presumably in view of, or with reference to, the statute.
The rule seems to be established in Missouri, and it is so in many of the other States, that a contractor does not waive his right to file a mechanics' lien by receiving from the owner of the building a promissory note for the amount due, payable at a time beyond the expiration of the period within which he is required to file his lien, but within the period within which suit must be commenced to enforce the lien, the taking of the note merely suspending the right of action. McMurray v. Taylor, 30 Missouri, 263; Ashdown v. Becker, 31 Missouri, 465; Jones v. Hurst, 67 Missouri, 568, 572. This rule is based upon the principle, recognized in that State, that the execution of a note for a preëxisting debt is not a payment of the debt, but only presumptively so; but a party relying upon that principle must, in an action on the original debt, produce the note for cancellation. Authorities last cited; Brooks v. Mastin, 69 Missouri, 58; Doebling v. Loos, 45 Missouri, 150.
Under this rule of law, the contention of the plaintiff in error must fail. For, a fortiori, would the right to file the lien remain, where, as in this case, no notes were given at all, but the agreement to give them was broken by the owner of *137 the building and premises. That agreement out of the way, the contractor or builder or material man occupied a status created by the law, viz., was possessed of a right to claim a mechanics' lien. This claim, it is admitted in the record, he asserted in accordance with the law, and this suit was brought by his assignee for the enforcement of such claim. The original contract for payment of the amount due on the contract in instalments having been broken by the plaintiff in error, the defendant in error had the right to elect to declare the whole sum due at once, and proceed to the enforcement of its lien. It follows, therefore, that there was no error in the action of the court in entering up a judgment recognizing and enforcing such lien. That being true, there was no error, so far as this record shows, in overruling the motion made in arrest of judgment.
But one alleged error remains to be considered, viz., the seventh. Exhibit "A," referred to therein, is a letter from Van Stone to Schupp, as follows:
                              "Marshall, Mo., Aug. 6, 1885.
"F.J. Schupp, Esq., Marshall.
"Dear Sir: The flour mill put up by you for me is satisfactory to me and is hereby accepted. The corn-rolls do not work to my satisfaction. Whenever such rolls are put in or shall do satisfactory work. I shall be ready to pay for the entire work.
                                          "C.H. VAN STONE."
It is urged that the court below erred in construing this letter to be a waiver of the time within which the mill was to be built. So far as concerns that portion of the letter relating to the part of the mill used for the manufacture of flour, it is an unconditional acceptance. It could not be made more positive. Nor do we think the latter part of the letter relating to the corn-rolls is susceptible of any other construction than the one put upon it by the court. By the language there used the plaintiff in error bound himself to pay for the entire work whenever it should be completed so that the corn-rolls *138 would do satisfactory work. There is nothing in that letter to indicate that any particular time was in the minds of the parties as to when such work was to be completed. Of course, the law implies that the completion of the work should not be unnecessarily prolonged. It should be done in a reasonable time. It was completed on or before October 16, 1885, for on that day it was accepted as satisfactory by Summerville, who, as before stated, had been agreed upon as a referee to determine when the mill did satisfactory work. Whether the period between August 6 and October 16, during which time the corn-rolls were being perfected, was an unreasonable time, or too great a delay, was in reality a question for the jury to determine, under proper instructions from the court. As no error is assigned to the charge of the court in this respect, and no exception was taken to the charge as given, except to it as an entirety, it must be presumed that no error was committed in this behalf; and that the jury found all the elements of an acceptance, by the plaintiff in error, of the completed mill.
Judgment affirmed.
