utes to the erection of an entire building.20 In Texas, one who rents to the owner of a house tools used in moving it is an original contractor.21

22

§ 221. One doing work for a corporation under a contract made with its president or its agent is an original contractor, since the president and agent represent the company.2 Where a contractor abandons the work, and the owner thereupon employs the subcontractors to complete it, they are, from that time on, original contractors, and entitled to liens as such.23 And the same is true of an assignee who in like manner finishes the work with the consent of the owner.24 In Delaware the word "contractor" is limited in its meaning to the person that contracts to do the work in whole or in part of any building, and also to furnish the materials required for such work, and one who merely furnishes materials, or who works on the building without contracting to furnish the materials, is not a contractor.25 In a recent case in Pennsylvania it appeared that the plaintiff agreed to sell defendant a vacant lot, and to build her a house thereon. Both agreements were written on the same paper, but the consideration for each was separate, and payable at different times. Plaintiff built the house, and then gave defendant a deed of the property. It was held that, as the agreements were severable, the plaintiff was entitled to a mechanic's lien on the property for the amount due him for building the house.26 One who agrees with the owner of a lot to erect thereon at his own expense a building to be used by them jointly is regarded as the owner of the building, so that a person contracting with him is an original contractor, and not a subcontractor.27 One who merely furnishes materials for a

20 Church v. Smithea, 35 Pac. 267, 4 Colo. App. 175. 21 Burke v. Brown (Tex. Civ. App.) 30 S. W. 936.

22 McFall v. Ice Co., 16 Atl. 478, 123 Pa. St. 259; Hearne v. Chillicothe, 53 Mo. 324.

28 Petrie v. Hunter, 2 Ont. 233; Guest v. Hunter, 10 Ont. App. 127. have no lien for work done by the former contractor.

Mass. 103.

24 Pensacola R. Co. v. Schaffer, 76 Ala. 233.

But they

Whitney v. Joslin, 108

25 Mulrine v. Washington Lodge, 6 Houst. (Del.) 350; Curlett v. Aaron, Id. 477.

26 Fullmer v. Poust, 26 Atl. 543, 155 Pa. St. 275.

27 Hooker v. McGlone, 42 Conn. 95.

building, without doing any work thereon, is not a contractor.28 Neither is one who merely works on the building by the day.29

What Contractor's Lien Includes.

§ 222. A contractor's lien includes both labor and materials furnished by him. Thus, where materials are furnished under a contract, and part of them are procured from another, who refuses to deliver them unless paid for by the contractor, the latter, having paid for them, can include their cost in his claim of lien.30 A contractor is not restricted to the amount actually paid by him to his workmen, but is entitled to a lien for the value of their services, in the absence of an express contract.3: Under statutes that do not allow any lien to mere material men, a contractor may have a lien for labor furnished by him, and for materials furnished by him and used in his work, but not for materials furnished by him for others to work on.32

31

§ 223. A subcontractor is one who furnishes work and materials, or work alone, under a contract, not with the owner, but with the contractor. Where the contractor, after a contract for the erection of a house for an entire sum has been signed, takes another person into partnership with himself in the mason work of the house, but not in the other work, the co-partners are, as a firm, subcontractors in regard to the mason work.33 And where the owner of land made a contract with two men to construct certain buildings, and the latter agreed between themselves that one of them should do the mason work and furnish the materials therefor, and receive a cer

28 See post, § 241.

29 Brown v. Cowan, 1 Atl. 520, 110 Pa. St. 588; Sparks v. Mining Co., 55 Cal. 389.

30 Avery v. Clark, 25 Pac. 919, 87 Cal. C19; Collini v. Nicholson, 51 Ga. 561. 31 Anderson v. Dillaye, 47 N. Y. 678.

32 Sweet v. James, 2 R. I. 270.

33 Shaar v. Ice Co., 37 N. E. 54, 149 Ill. 441, reversing Knickerbocker Ice Co. v. Vandemark, 50 Ill. App. 231.

tain proportion of the contract price, and that the other should do the rest of the work, and receive the remainder of the price, it was held that each thus became a subcontractor under the joint contract. But where the contractors are co-partners, and contract as such, a mere arrangement between them that each shall attend to a certain kind of work in the building does not make the individual partners subcontractors.35 Under a statute which provides that all persons furnishing things or doing work, except such as shall have contracts therefor directly with the owner, proprietor, or his agent, shall be considered subcontractors, one who works for the contractor is a subcontractor.3 36

§ 224. As a general rule, one who merely furnishes the contractor with materials is a material man in the second degree, and not a subcontractor; but it has been held in Michigan that one who had agreed to furnish a contractor with all the cut stone necessary for a building which the contractor was erecting was a subcontractor, for the reason that his contract was not complete without reference to the original contract.37 In a recent case in Connecticut it appeared that defendant and R. entered into an agreement by which defendant was to build a house upon the land of R., of such character and cost as he chose; R. to pay him the sum of $200, and defendant to furnish the remainder. As compensation, defendant was to have the privilege of occupying the house, when completed, with R., who was his mother-in-law. The materials for the building were furnished by plaintiff under contract with defendant, without the knowledge or direction of R., who only knew that the house was being constructed in pursuance of her agreement with defendant. The $200 was paid by R. before she had any notice that the materials were furnished by plaintiff, or that they had not been paid for. Plaintiff sought to enforce a mechanic's lien against the premises. His claim of lien based the lien explicitly on the contract between himself and defendant, not mentioning the name of R., nor did he give her the statutory notice of his intention to claim a lien.

34 Vogel v.. Whitmore, 25 N. Y. Supp. 202, 72 Hun, 417; Stroebel v. Ochse, 14 Misc. Rep. 522, 35 N. Y. Supp. 1089.

35 Harbeck v. Southwell, 18 Wis. 418.

36 Buckley v. Taylor, 11 S. W. 281, 51 Ark. 302.

37 Avery v. Ionia Co., 39 N. W. 742, 71 Mich. 538.

On this state of facts it was held that defendant was the original contractor with R. for the erection of the house, and that plaintiff was merely a subcontractor.38 In a Massachusetts case it was held that a lien could be claimed for work done in enlarging a schoolhouse under a written contract with a building committee chosen by the district, with authority to make the enlargement, although by the terms of the contract the committee were personally responsible therefor, on the theory that the building committee was the contractor, and those contracting with such committee were subcontractors.39 The consent by an owner to the making of a subcontract by the principal contractor, and to such subcontractor's having a lien, does not give such subcontractor a principal contractor's lien, or constitute him a principal contractor.40

Pennsylvania and New York Systems.

§ 225. Subcontractors seem to be special objects of solicitude to the legislatures, and nearly all the present mechanic's lien acts expressly include them. In regard to subcontractors' liens, there are two systems of legislation in force in the United States. One originated in Pennsylvania, and has been called the "Pennsylvania system." This system gives the subcontractor a direct lien, either by an agency created by the statute, or by an implied agency vested in the original contractor. The other system prevails in New York, and is known by the name of that state. Under it the subcontractor acquires a lien by way of subrogation, whereby the rights of the contractor are in a measure transferred to him, along with the limitations that bound the contractor's rights.11

Lien by Implication.

§ 226. Where the statute does not expressly name subcontractors among those entitled to liens, there is some difficulty in determin

39 Kinney v. Blackner, 10 Atl. 568, 55 Conn. 261.

39 Morse v. School Dist., 3 Allen (Mass.) 307.

40 Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co., 15 C. C. A. 29, 68 Fed. 105.

41 An interesting discussion of this subject will be found in Hunter v. Truckee Lodge, 14 Nev. 33, and Merrigan v. English, 22 Pac. 455, 9 Mont. 113.

44

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ing under the decisions whether they have liens by implication. It has been held that subcontractors have liens where the statute gives a lien to "any mechanic or material man who performs work and furnishes materials"; 42 where it declares that "no person who shall do work or labor in the construction" of a building for a contractor shall have a lien, unless he proceed in a certain way; 43 where it gives a lien to every "mechanic, builder, lumberman, artisan, workman, laborer, or other person who shall do or perform any work or labor"; and where it gives a lien to "every person performing labor or furnishing materials, whether done or furnished at the instance of the owner or his agent," and declares that "the judg ment shall direct the amount due subcontractors to be paid out of the proceeds of sales before any part of such proceeds are paid to the contractor." 45 It has been held in Massachusetts that under a statute giving a lien to "any person who shall actually perform labor" by consent of the owner, or other person having authority, or acting for such owner, a plasterer employed by a builder who has made a written contract with the owner of land to build a house thereon is entitled to a lien on the house and land for his own labor and that of his apprentices, but not for that of journeymen and laborers employed and paid by him. On the other hand, it has been held that subcontractors have no lien where the statute gives a lien to contractors and certain other persons who work in the construction of railroads, without naming subcontractors; 7 where it gives a lien to those who furnish labor or materials for erecting or repairing any building "by contract with the owner" of the land; 48 where it gives a lien to "any person who may have furnished materials used in the erection of a building," or "any journeyman or laborer"; 42 where it gives a lien to persons who have 42 Howell v. Campbell, 12 Phila. (Pa.) 388; Knowlan v. Ellis, Id. 396.

46

43 Hatch v. Faucher, 8 Atl. 543, 15 R. I. 459.

44 Merrigan v. English, 22 Pac. 454, 9 Mont. 113.

45 Heckmann v. Pinkney, 81 N. Y. 211.

46 Parker v. Bell, 7 Gray (Mass.) 429; Whitford v. Newell, 2 Allen (Mass.) 424. 47 Tucker v. Railway Co., 26 S. W. 375, 59 Ark. 593; Richardson v. Railroad Co., 17 S. E. 195, 37 W. Va. 641. The latter case was under a statute giving a general lien on property of corporations.

48 Dawson v. Harrington, 12 Ill. 300.

49 Rivers v. Mulholland, 62 Miss. 766.