On plaintiff's appeal from the Supreme Court, whose per curiam opinion is printed in 11 N.J. Mis. R. 155; 165 A. 89.
For the appellant, George S. Hobart and Augustine J. Kelly.
For the respondents, Cassman & Gottlieb.
We conclude that the judgment of the Supreme Court should be affirmed, and have little to add to the per curiam opinion of that court, in which the facts are sufficiently stated.
We agree that the contract was either one for labor and materials, in which case there was no privity of the defendant as successor to title; or that it was a contract of conditional sale of "goods" so affixed to realty as not to be severable, and not enforceable against the defendant because not filed with the county clerk pursuant to the statute. Pamph. L. 1919, p. 461. There seems to be no substantial distinction between the contract in this case and one for the installation of a refrigerator plant, as in Domestic Electric Co. v. Mezzaluna, 109 N.J.L. 574.
The original contract seems to have treated the matter in still another aspect, viz., as a contract for a "building" and within the mechanics' lien law, for there was attached to the contract an express written consent by the owner of the land, as contemplated by section 8 of the Mechanics' Lien act.
Regarding the completed well as a "building" -- as to which we express no opinion -- the contractor could still have no personal judgment against the non-contracting owner, but could lien within the statutory period of four months. This point, however, is not in the case.
The trial court was asked to nonsuit on the ground that the contract was one either for work and materials, or within the Conditional Sales act, and that plaintiff could not recover against the successors of Souders in either aspect, for the reasons stated above and in the Supreme Court opinion. The nonsuit should have been granted, and the reversal by the Supreme Court was proper.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 13.