sion to do so will not reverse a decree, unless it was asked for.

(Syllabus by the Court.)

the very root of the plaintiff's demand. The compensation to be paid the contractor was payable in installments as the work pro

Bill by the West Virginia Building Company against Thomas J. Saucer. Decree for plaintiff, and defendant appeals. Affirmed.

J. N. McMullan, for appellant. F. M. Reynolds and L. J. F. Forman, for appellee.

BRANNON, P. The West Virginia Building Company brought a chancery suit in the circuit court of Grant county against Thomas J. Saucer, to enforce a mechanic's lien for the construction of a building in the town of Bayard, under written contract with Saucer, which resulted in a decree in favor of the company to sell the property, and Saucer appeals.

It is claimed for Saucer that the bill was improperly held to be good on demurrer. It is claimed that the bill does not sufficiently set out the contract, whether verbal or written, and its terms and stipulations and conditions. It is true that it is always best to set out a contract with definiteness and particularity, so far as its stipulations are pertinent to the matter to be litigated, but other matters, though in the contract, need not be specified. A bill to enforce a mechanic's lien does not require very great particularity, because the account filed with the clerk, claiming the lien, itself has great effect. This bill alleges that Saucer contracted with the plaintiff to erect on certain lots a large building, and to furnish certain material for same in the construction thereof, and that, in pursuance of and under said contract, plaintiff erected the building, and furnished material therefor; that it was under contract between the parties, and that the contract price for labor and material used and furnished therein all amounted to the sum of $4,837.17; that, after allowing all credits to which Saucer was entitled, there was due from him $1,483.67; that plaintiff, on the 2d of February, 1896, ceased to labor on and furnish material for the building; and that the bill says that the work was done and material furnished and building erected under a contract taken the

day

of 1895, not saying whether written or oral. The account, claiming the lien filed in the clerk's office under the statute, was exhibited with the bill. Surely, this bill charged all that seems essential,-the contract, the work done under it, the amount thereof, the date when finished, and the filing of the account. It is immaterial whether a contract be written or oral, to create a mechanic's lien. The account gives definite specifications of work, labor, and material.

It is claimed for Saucer that, when the mechanic's llen account was filed in the clerk's office, the work had not been fully completed, and therefore the account could not be filed, and created no lien. This objection goes to

builder may, before the completion of the work, file his lien. Our statute gives him a lien over other liens arising subsequent to the time "when such labor shall have been performed or material furnished"; that is, as to subsequent creditors, and surely so as to the owner. I think that this lien starts from the first moment when the work or delivery of material commences, even as to such creditors, and certainly as to the owner. Phil. Mech. Liens, § 216; Oriental Hotel Co. v. Griffith, 53 Am. St. Rep. 790. Suppose the builder files his lien after the lien starts, and afterwards completes the work; shall his lien be overthrown because his account is filed before completion? I would think not. I know that the Code does say that the lien shall be discharged unless the builder shall, "within 60 days after he ceases to labor on, or furnish material or machinery, file his llen ac count." But as said in Luter v. Cobb, 1 Cold. 528: "The limitation is intended for the benefit of creditors of the owners and purchasers, to protect them from fraud and injury by the operation of this secret lien." It gave that time to the mechanic to continue his lien,—that is, his last point,-but that does not say that he need wait until then if his lien has once commenced. He need not file his lien before that time. He may go on to work, and he has his lien from its commencement or when he began furnishing material, and the statute gives him a lien over any creditors whose liens arise after his lien commences, without any recordation, because the law gives notice to the world that the mechanic's lien attached to the building, which lien he may enforce by filing it within 60 days after completion. While the work is going on, no notice is necessary; the work itself is that. But if the mechanic, after completion, waits longer than 60 days, his lien is gone; certainly, as to creditors. Bank v. Dashiell, 25 Grat. 625.

As installments in this case were due before completion, I would think a lien filed before completion would be good. My idea is that a lien, though not necessary if filed at once after it commences, is good for the whole contract price when completed; and even if work be not completed, yet, if the party would be by law allowed to recover for what work he did or what material he furnished in an action of assumpsit upon a quantum meruft or quantum valebant, his lien would be good in equity for the same. But in this case it is not necessary to go so far, as this decision does not require it. The work was substantially completed before the account was filed. The defendant had made certain payments. He had taken possession of the house, and there remained to be done upon it very inconsiderable work, compared with the total. It certainly is true in law that if there be a substantially completed, though not perfectly

completed, contract, the claim may be filed, and the defendant may recoup or abate from the contract the value of the failure. He can claim damages for noncompletion. He has no right to forfeit all that the builder has done. If in an action at common law the builder would be allowed to recover any sum after the abatement to the owner of his damages, for the noncompletion of the contract, then in a suit in equity he would likewise recover. Justice is thus done to both parties. If the deficiencies are unimportant, and may be easily made up, the lien is still good. Glacius v. Black, 50 N. Y. 145; Hayward v. Leonard, 7 Pick. 181; Stewart v. McQuaide, 48 Pa. St. 191. But, in this case, Saucer accepted the building, took possession of it, rented it out; and surely, under such circumstances, he must pay what the material and work are worth,-in other words, the contract price, with such abatement as the shortcomings of the contracter called for. Bell v. Teague, 85 Ala. 211, 3 South. 861; Vanderbilt v. Iron Works, 25 Wend. 665. It is very clear that any recoupment or abatement to which the owner is entitled can be allowed in chancery, in a suit by the mechanic or builder on his lien. Phil. Mech. Liens, § 140. When the contract is entire, and the building substantially finished, and it is treated by all parties | as completed, though some unimportant parts be not completed, if the time limited by the statute is suffered to elapse before these unimportant things are done, more especially if intervening rights in favor of a third party have attached, the lien cannot be successfully asserted. Luter v. Cobb, 1 Cold. 526. That treats the unimportant deficiencies as inadequate to keep alive the right to file the lien; that is, the date for filing does not run on till their completion. Conversely, it is true that those unimportant deficiencies did not prevent the builder from filing his lien, and recovering what was due him on it, less abatement for such deficiencies.

The claim is urged that the sum allowed Saucer for abatement is too small. It was $153.21. The evidence shows that the items of work to fully complete the building were not important, but I have this to say under this head: that the recoupment depended upon a large number of witnesses, largely on their mere opinion, and this evidence conflicted, especially as to what allowances should be made for abatement. There was a great mass of evidence taken on this, and the allowance is based on mere estimate, and it can. not be expected that upon this mere question of fact, standing on conflicting evidence and inferences and deductions therefrom, this court should reverse the finding of the circuit court. I think it substantially right. Hall v. Hall, 30 W. Va. 780, 5 S. E. 260; Richardson v. Ralphsnyder, 40 W. Va. 15, 20 S. E. 854; Dorr v. Dewing, 36 W. Va. 466, 15 S. E. 93.

It is claimed that the court should have directed an issue out of chancery to pass upon the question of what allowances for abate

It is very dif

ment should have been made. ficult to reverse a decree for failure of the court to direct an issue, because a large discretion is given the court herein, and the rule when it should and should not do so cannot be well defined. Our Code (chapter 131, § 4) says that the court, when "there is such confliction in the evidence as in the opinion of such court to render it proper, may direct an issue." It prohibits it in any other case. This tells itself of a large discretion. Powell v. Batson, 4 W. Va. 610, holds that the proper criterion by which to test the propriety of such an issue is that, where in a given case, the decree rendered is sustained with reasonable certainty by the facts and circumstances. there would be no error in refusing to direct an issue to try any material matters put in issue therein. The evidence was conflicting. It was not so particularly as to any particular fact in issue, but on this mere estimate of the value of deficiency; and the evidence does, with reasonable certainty, sustain the court's finding, as much so as in such a case could be expected. A court can and should itself decide matters of fact, and even state an account, and save the cost and time of a protracted jury trial, if it have such data and evidence to enable it to do so properly. Dar by v. Gilligan, 43 W. Va. 755, 28 S. E. 737 Bart. Ch. Prac. 848.

A further consideration in this case is that no issue was asked. I am impressed with the opinion that when a court has used its discretion, and gone on without an issue, it can. not be reversed for omission to direct one, unless it be asked. This is sustained by Dorr v. Dewing, 36 W. Va. 466, 15 S. E. 93, holding that, if a cause has been heard without order of reference asked or suggested, a party can. not, for the first time in the appellate court, assign the failure to direct a reference, unless it appear that manifest injustice has been done him thereby. I should think it would be much more so in the case of failure to direct an issue than as to a failure to direct a reference to commissioner. Judge Snyder says, in McKinsey v. Squires, 32 W. Va. 43, 9 S. E. 55, that the party should ask an issue if he wants it.

Complaint is made that there was no reference to a commissioner. I have already, by reference to the case of Darby v. Gilligan, answered this objection. There was no complicated account to be made before a commissioner; no ascertainment of liens and priorities. When the court, having the contract price before it for the building, made up the sum which the defendant should be allowed for recompense, the matter of account was ended. Why could not a judge do this, as well as a commissioner?

As to the complaint that the lien under the deed of trust in favor of the National Building & Loan Company was not ascertained and decreed: That company and its trustee were before the court. The decree gave the building company a first lien, and fixed its amount,

and then declared that the next lien was that of the National Building & Loan Company under its deed of trust, but did not fix its amount. Now, that company and its trustee are not complaining of this; only Saucer is. It is strange that he should complain of the failure of the court to declare that his property should be sold unless that lien, too, were paid. The decree is favorable to him in this respect, in not making him pay that deed of trust debt at once. Moreover, it was a subordinate lien. Moreover, it was a lien payable by monthly payments, as building loans usually are, and it would have been improper to decree its payment long before maturity. Of this, had it been done, Saucer could have complained; and, as to the amount of it, it could not have been fixed. It was not yet due. He certainly knew its amount. It was not necessary that the sale should raise an amount to cover it. He had the right to go on, and pay in in monthly payments.

Complaint is made that the property was not rented, instead of sold. Now, the mechanic's lien statute commands a sale, and does not require the mechanic to wait five years for his money. He is entitled, by the very letter of the statute, to a sale. The statute, in the case of judgment liens, says that, if five years' rental will pay them, no sale shall be made, but this case is governed by the mechanic's lien statute. We affirm the decree.

(45 W. Va. 670)

DEATON et al. v. MITCHELL et al. (Supreme Court of Appeals of West Virginia. Dec. 14, 1898.)

SUPREME COURT — JURISDICTIONAL AMOUNT—APPEALABLE DECREE.

1. Where a decree merely pecuniary, and for not over $100, is reversed on bill of review or petition for rehearing, this court has no jurisdiction of an appeal from the decree of reversal.

2. A decree which adjudicates all the principles of a cause and settles the rights of the parties, leaving nothing further to be done but to execute it, is such a decree as will support an appeal from a decree which grants a rehearing of the first decree.

(Syllabus by the Court.)

Appeal from circuit court, Mercer county; R. C. McClaugherty, Judge.

Bill by C. A. Deaton & Co. against E. M. Mitchell and others. From the decree, plaintiffs appeal. Dismissed.

John A. Douglass, D. W. McClaugherty, and Couch, Flournoy & Price, for appellants. Johnston & Hale, for appellees.

BRANNON, P. Before considering a case before it on its merits, this court must consider its jurisdiction, especially as it is in this case challenged. We have no jurisdiction of this appeal. It was a suit to enforce a judgmen lien upon land. On reference to a commissioner to ascertain liens, only two were reported, and they were decreed against the

land, and it was decreed to sale; one being to the Bank of Bramwell, the other to C. A. Deaton & Co., and each less than $100, that of Deaton & Co. being $97.61. The debt of the bank was paid, as shown by a record entry, though this is not material. Afterwards, on a petition assigning errors in former decrees, filed by defendants, the decree of sale was set aside, and a rehearing allowed. Deaton & Co. obtained from a judge of this court an appeal. Deaton & Co., if aggrieved at all, are aggrieved in a matter purely pecuniary, and the amount is less than $100, excluding costs, as the decree granting rehearing took away from them $97.61. Where the controversy is purely pecuniary, the amount must exceed $100, exclusive of costs. Berry v. Cunningham, 37 W. Va. 302, 16 S. E. 463; Me Claugherty v. Morgan, 36 W. Va. 191, 14 S. E. 992. It is claimed, further, that for another reason we have no jurisdiction, and that is that the decree confirming the commissioner's report, decreeing the debts against the debtor and his land, is not a final decree; and that, while Code 1891, c. 135, § 1, cl. 9, gives a writ of error or appeal "in any civil case where there is an order granting a new trial or rehearing," without waiting for such new trial or rehearing, yet this is only where the decree reheard is a final one. That decree was likely, in full sense, a final one, as it only remained to execute it by sale; but certainly it was so far a final one as to come under said clause granting appeal where rehearing has been granted. That decree adjudicated the principles of the cause, fixed the rights of the parties as to all matters in the case on which relief could be granted, and is so far final that it is an appealable decree, and will support a bill of review. It left nothing to settle. Core v. Strickler, 24 W. Va. 689; Rader v. Adamson, 37 W. Va. 582, 16 S. E. 808; Shumate v. Crockett, 43 W. Va. 491, 27 S. E. 240; Buster v. Holland, 27 W. Va. 510; Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) 20; Rawling v. Rawling, 75 Va. 83. Very clearly the same intention moved the enactment of clause 9, as respects new trial and rehearing, the one in law, the other in chancery; and that was to change the old law forbidding a writ of error or appeal till final judgment or decree, and, by anticipating them, allow a writ of error at law where a verdict is set aside, and a rehearing in chancery where there has been a decree settling the principles of a cause, so as to have the appellate court pass on the merits of the case without the delay and expense of new trial or rehearing. It was intended to let a party deprived of the jury's decision or the court's decision on the merits in his favor appeal at once. Strange that a decree so far final as to allow a bill of review or appeal should yet not be final enough to allow an appeal to test the right to grant a rehearing. This would defeat the manifest aim of the clause. If, therefore, a decree adjudicates the principles of the cause, so that it only remains to execute the adjudi

cation, a rehearing gives right to appeal. Whether it must adjudicate all the matters involved, I do not say. This decree did so. Indeed, it may be that this clause was intended to go further, and give appeal from a rehearing where the decree is interlocutory, yet decides some principles directing and controlling further final decision, though not appealable or open to bill of review; in other words, where a petition for rehearing, properly so called, and not an appeal or bill of review, lies. But as this decree closed all the matters involved, that question does not arise, and I have not examined it. In fact, the decree being final, the pleading called a petition for rehearing is a bill of review, and it cannot be questioned that a decree disposing of a bill of review will support an appeal, if the requisite pecuniary amount is present, where the decree reviewed is merely pecuniary. The name given the paper is no matter. Martin v. Smith, 25 W. Va. 579; Crumlish Case, 40 W. Va. 659, 22 S. E. 90.

Dismissed for want of jurisdiction.

5 W. Va. 237)

GALLOWAY v. STANDARD FIRE INS. CO. (Supreme Court of Appeals of West Virginia. Nov. 19, 1898.)

INSURANCE-CONTRACT-DELIVERY-ACCEPTANCE

PAYMENT-LIMITATION OF ACTION.

1. Where application is sent by an applicant or his agent from one state to an insurance company of another, and there accepted, and a policy of insurance is there issued, it is a contract of the state where issued.

2. Generally, the place of the acceptance of a proposal is the place of contract.

3. A deposit of a contract in a post office addressed to the party to whom it is to be delivered is a delivery at the post office.

4. A debtor must seek his creditor to pay him, unless the creditor be out of the state.

5. If a policy of insurance provides that it shall not be valid until countersigned by its agent at a certain place, it is a contract of the state where so countersigned.

6. Where a policy of insurance provides that suit must be brought upon it within six months after loss by fire, and there is a promise by the company, within the six months, to pay the policy, and the whole period runs out before the company refuses to pay, such promise is a waiver of the limitation, and estops the company from pleading it, and is not a mere suspension of time from the promise until the refusal to pay.

(Syllabus by the Court.)

Error to circuit court, Ohio county; Joseph R. Paull, Judge.

Action by C. F. Galloway against the Standard Fire Insurance Company. Judgment for defendant, and plaintiff brings error. Reversed.

White & Allen, for plaintiff in error. W. P. Hubbard, for defendant in error.

BRANNON, P. This is an action by Galloway against the Standard Fire Insurance Company to recover for a loss by fire of a stock of goods insured by a policy issued by the company, resulting in a finding by the

court trying the case in lieu of a jury in favor of defendant, and judgment for it. The plaintiff sued out a writ of error. The policy contained a clause that no suit upon it should be sustained unless commenced within six months after the fire, and the company pleaded this contractual limitation in bar of the action and the plaintiff tendered three replications, which were rejected. The case turns upon whether the circuit court was right in the rejection of those replications. Only two of them need be considered, Nos. 2 and 4.

Replication No. 2 seeks to meet the plea of limitation by stating that the policy was made in the state of Virginia; that it was countersigned at Wheeling, W. Va., but not then completed by delivery, but was later delivered to Rice, an insurance broker of Richmond, Va., and by him was delivered to Hutton, an insurance agent of Warrenton, Va., and was by him delivered to Galloway at Warrenton, and that it thus was a completed Virginia contract for insurance of property situated in Virginia, and to be performed in Virginia; and that the company was not a corporation created by Virginia; and that certain statutes of Virginia, specified, prohibited foreign corporations from doing business there without complying with certain regulations, one being the appointment of an agent upon whom process might be served, and that this the defendant had not done; and that, because there was no such agent, the plaintiff was prevented from suing within the six months. This replication would maintain that, the policy being a contract made in Virginia, its statute law requiring the appointment of such agent became a part of the contract, as if inserted therein,-just as much a part of the policy as if it had in words said that the six-months limitation should apply only "in case the company shall appoint, as required by the law of Virginia, an agent to accept service therein of process in actions against it." This raises the question whether the policy is a Virginia or West Virginia contract, for, if not a Virginia contract, very plainly the Virginia statute cannot be an element in it. I think, for several reasons, it is a West Virginia contract. May, Ins. § 66, says: "It follows, from the rule that the contract is completed when the proposal of the one party has been accepted by the other, that the place of contract is the place of acceptance. If an agent, resident in one state, of an insurance company, resident in another, forwards the requisite papers to the home office, and a policy is issued, and mailed directly to the applicant, the contract is a contract made in the state where the home office is situated; and, since the acceptance is the term of completion, it would seem that a transmission of the policy by mail to the agent, to be delivered by him to the applicant, would have the like effect." See 2 Pars. Cont. 582. And 3 Am. & Eng. Enc. Law, 551, says that the general rule is that "the place of the contract

of insurance is the place where it was accepted." Tested by this law, when the proposal, if forwarded by an agent of the company, resident in Virginia, was accepted at the home office, and a policy issued and mailed to the agent in Virginia, to be delivered by him to the applicant, it would be a West Virginia contract, because the acceptance was there; but, to make this stronger, we may eliminate the consideration that the policy was sent to a Virginia agent of the company, to be delivered in Virginia to the insured party, as this replication does not aver that Rice or Hutton was agent of said company, and the policy has a clause declaring him not an agent of the company, and the policy is a part of the declaration; and thus we have simply the case of some one as plaintiff's agent sending to the Wheeling home office an application, and its acceptance there, and the issuance there of a policy, and its de livery to the applicant's agent in Richmond, which, under above law, makes it a West Virginia contract. The place of acceptance, not delivery, decides where the contract is made, as a general rule. And, if delivery were important, a delivery to the mail, addressed to the applicant or his agent, would be the final delivery. 2 Pars. Cont. 582; Hartford Steam-Boiler Inspection & Insurance Co. v. Lasher Stocking Co. (Vt.) 29 Atl. 629; 4 Am. & Eng. Enc. Law (2d Ed.) 202, note 1. Nothing more remained to be done to complete the contract. By delivery to the mail, the company, in effect, delivered it to a third party to be delivered to the insured, and lost control over it. An excellent discussion of this subject is that by Justice Clifford. Desmazes v. Insurance Co. (U. S. Cir. Ct. Mass.) 7 Fed. Cas. 529. That it was completely signed and countersigned by the officers at Wheeling is recited in the policy. So it is, under the facts and law, a West Virginia contract. But, to make this plainer, it declares that it should "not be valid until countersigned by the duly-authorized agent of the company at Wheeling, W. Va." It shows that it was countersigned there. It then was completed and took effect. Judge Anderson, in Insurance Co. v. Warwick, 20 Grat. 628, says this shows it to be a contract where countersigned. The place of the performance of the final act, which is to give effect to the contract by its own word, is conclusive to show where the contract was made. A policy of Insurance declared that the contract "shall not take effect until the first premium shall have been paid." It was held to be a Missouri contract, though signed by the company in New York, because the payment of premium was in Missouri. Assurance Co. v. Clements, 140 U. S. 226, 11 Sup. Ct. 822. A policy issued by a company in New York, and there signed, but not to be valid until countersigned by an agent in Massachusetts, was held a Massachusetts contract. ner v. Insurance Co., 10 Gray, 131. Same doctrine, 3 Am. & Eng. Enc. Law (1st Ed.)

Heeb

551. These principles are fully stated in Ford v. Insurance Co., 99 Am. Dec. 663, 668. But if it were a Virginia policy, what then? The law requiring an agent's appointment would not be a part of it, because it is a law unto itself, prescribing its own limitation, and contains no exception based on failure to appoint an agent. It is settled that where a contract fixes a shorter limitation than that of the general law, the exceptions in the general statute of limitations do not apply, be cause the rights of the parties are tested by the contract; and, as it relieves them from the general law, it relieves from its excep tions. Wilkinson v. Insurance Co., 72 N. Y. 499; McElroy v. Insurance Co., 48 Kan. 200, 29 Pac. 478; Riddlesbarger v. Insurance Co., 7 Wall. 386; 2 May, Ins. § 483. And again, if a Virginia contract, and the statute a part of it, it seems to me that the statute could only apply to a suit in Virginia. What has it to do with a suit in West Virginia? If the policy had in words said that suit should be within six months, "unless the company fail to appoint an agent in Virginia," how could it affect a suit here? So I conclude that the Virginia statute has no relation to this suit, and replication 2, setting it up as an excuse for not sooner suing, sets up immaterial, irrelevant matter, and is no answer to the plea of contract limitation. The facts which it states make the policy a West Virginia policy, and exclude the introduction of the Virginia statute. As suit could be brought in West Virginia, what excuse is there for not suing here? If, however, we could say that replication shows a Virginia contract, it would be bad, because the declaration files the policy, which shows itself on its face to be a West Virginia contract, and the replication showing a Virginia contract would be in conflict with the declaration, and be a departure in pleading, and bad under the law of pleading forbidding departure. 6 Enc. Pl. & Prac. 460.

The policy does not say payment of loss was to be at any particular place. There fore, it is to be where the policy issued. 3 Am. & Eng. Enc. Law, 446; 2 Pars. Cont. 583. It is urged that the debtor must seek and pay his creditor, and, as the insured party lived in Virginia, therefore it is a Virginia contract. I think this court has, in some opinion, held that the duty of a debtor to seek his creditor to pay him does not call the debtor to go out of the state, and I find the law so stated in King v. Finch, 60 Ind. 423, and in Littell v. Nichols' Adm'r, Hardin, 66. But this does not seem to test the question of the place of the making of the contract. If a contract be made between parties, and the creditor should remove to Maryland afterwards, would that make it a Maryland contract?

Replication 4: It states that the goods insured by the policy sued upon were also insured in the Wytheville Insurance & Banking Company and the Petersburg Saving &