Service after Completion of Subcontract.

125

§ 371. In other states the notice is to be given after the work or materials mentioned in it have been furnished. Where, after possession is given of a building, defects and omissions are discovered, which the architect supervising the work requires to be corrected to complete the contract, and this is done by subcontractors, the subcontracts cannot be said to be completed until such work is done; and notice of liens by such subcontractors may be given with reference to this point of time.1 And, where the contractor abandons the contract when partly completed, the time for presentation of the subcontractor's notice begins to run from such abandonment, and not from the completion of the building by the owner under another contract.126 Under a statute providing that subcontractors. are entitled to a lien for materials furnished if, within 30 days after the expiration of the contract, they notify the owner, in writing, that such lien is claimed, material men may perfect their lien by giving such notice within 30 days after expiration of their contract, without reference to the completion of the building.127 Under a statute which declared that no lien shall attach for materials furnished unless the person furnishing the same shall, within 60 days after such materials are placed upon the land, give notice in writing to the owner of the property to be affected by the lien, if such owner be not the purchaser of the materials, that he intends to claim such lien, it has been held that at least where the materials are placed on the land from time to time, as requested, and not in pursuance of any entire contract, the notice need not be given within 60 days after the material man commences delivering, but, whenever given, is good for any materials placed on the land within the next preceding 60 days.128 Under a statute providing that, to pro

In a case in Iowa it ap

125 St. Louis Nat. Stock Yards v. O'Reilly, 85 Ill. 546. 126 Basham v. Toors, 11 S. W. 282, 51 Ark. 309. 127 Bassett v. Bertorelli, 22 S. W. 423, 92 Tenn. 548. 128 Gurney v. Walsham, 19 Atl. 323, 16 R. I. 698. peared that a contractor made two contracts,-one to build a house, and a second to build a porch on it. A material man furnished him with lumber for both contracts; the last lumber being furnished for the house June 16th, and the lumber for the porch June 27th and 29th. It was held that a notice

cure a lien for materials, the person furnishing them shall give notice within 60 days after the materials are placed on the land, a notice given on the 6th of January is sufficient to support a lien for materials furnished on the previous 7th of November.129 It is held in Kansas that under a statute providing that any person who furnishes material to a contractor, and wishes to claim a lien therefor, shall file a statement of the amount due him from the contractor for the material furnished within 60 days after the completion of the building in which it was used, and shall furnish a copy thereof to the owner of the building, such material man has a reasonable time in which to furnish such copy to the owner.130 And in Illinois it is held that under a statute which declares that a subcontractor's notice "shall be served within 40 days from the completion of said subcontract, or within 40 days after payment should have been made," such notice may be served before the subcontract has been completed, or the payment fallen due.131

§ 372. The Missouri statute requires 10 days' notice before filing the claim. Under this it has been held that a notice on the 15th of the month of a claim filed on the 25th was in apt time,132 but that a notice served on the 1st, when the claim was filed on the 10th, would not do.1 133 Where the statute requires the notice to be given

by the material man served July 224 was in time, and that as the notice was served within 30 days from the last item, and the time between the last item for the house and the first for the porch was less than 30 days, the owner was liable for the whole amount. Murphy, 19 N. W. 898, 64 Iowa, 165.

Jones & Magee Lumber Co. v.

Atl. 449, 18 R. I. 349.

1052, 43 Kan. 684; Deatherage v. Under a Texas statute providing

129 Paterson v. St. Thomas' Church, 27 130 Deatherage v. Henderson, 23 Pac. Howenstein, 23 Pac. 1054, 43 Kan. 691. that a duplicate of the bill of particulars of the lien debt must be recorded within six months from the maturity of the debt, and that a copy must be served on "the party owing the debt," without specifying within what time such copy shall be served, the failure to serve such party with a copy of the bill of particulars within six months after the maturity of the debt does not prevent the lien. Gillespie v. Remington (Tex. Sup.) 18 S. W. 338.

131 Cary-Lombard Lumber Co. v. Fullenwider, 37 N. E. 899, 150 Ill. 629, reversing 50 Ill. App. 508.

132 Hahn v. Dierkes, 37 Mo. 574.

133 Schubert v. Crowley, 33 Mo. 564. A notice of only eight days is also bad. Heltzell v. Hynes, 35 Mo. 482.

within 60 days from beginning work, and the claim to be filed within 60 days from completing it, a notice given within 60 days from beginning work is not invalidated by the fact that it was not given until after the claim was filed.1 134 A statute providing that lien claimants must, within 30 days from the performance of the last labor, serve on the owner a written notice of the filing of claim for a lien, applies to subcontractors on a railroad, although they are given 60 days in which to file their claims for liens.135

§ 373. A notice of subcontractor's lien not served until after expiration of the time prescribed therefor is not, under the Iowa law, wholly void, but it can only operate to prevent the payment of whatever sum may at that time remain due from the owner to the principal contractor.136 Under a statute which provides that when the contractor shall, on demand, refuse to pay money due to a subcontractor, the latter may notify the owner, and thus acquire a lien, such notice cannot be given until the debt is due, and until there has been a demand on the contractor and a refusal by him.137 A contractor and a material man in the second degree cannot, by a subsequent agreement, extend the time for paying for the materials, and thus extend the time for serving notice on the owner, without his knowledge or consent.138

134 Shattuck v. Beardsley, 46 Conn. 386.

135 Sandval v. Ford, 8 N. W. 324, 55 Iowa, 461.

136 Robinson v. Insurance Co., 8 N. W. 314, 55 Iowa, 489.

137 Kirtland v. Moore, 40 N. J. Eq. 106.

138 Kelly v. Kellogg, 79 Ill. 477.

(363)

386-389. Stating Name of Contractor or Employer.

390-392. Connecting Owner with Debt.

393-394. Allegations as to Owner's Title.

395-399. Specifying Work or Materials Furnished.

400. Stating Whether Claimant is Contractor, Subcontractor, or Ma

419-420. What is Sufficient Statement of Dates.

421-422. Allegations to Show that Claim is Filed in Time.

423. Errors and Misstatements.

424. Surplusage.

425.

426.

Unintentional Misstatements do not Vitiate.
Exceptions.

427. Amount of Error.

428. Errors Capable of Separation.

429. Mistakes in Dates, Names, and Words.

430. Waiver of Error.

431. Description of Property in General.

432. Error in Description.

433. Instances of Description of Land.

434-436. Claim Covering Several Buildings.
437. Apportioned Claim.

DIVISION II. FORM AND CONTENTS OF CLAIM-Cont'd.

438. Separate Claims under One Contract.

439. Choice between Different Kinds of Claims.
440. Omission of Required Allegations.

441-442. Allegations in Regard to Married Women.
443. Exhibits.

445. Joint Claims.

446. Allegations as to Notice..

DIVISION III. RECORDING CONTRACT IN LIEU OF CLAIM.

§ 447-449. In General.

DIVISION I. NEED AND PLACE OF FILING.

Need of Filing Claim.

§ 374. The second step in the enforcement of a mechanic's lien is the filing of the claim. Under the statutes of most of the states, this is an essential prerequisite to a suit to foreclose the lien. Under some statutes, however, no claim need be filed when the suit is begun promptly, under others it need not be filed when the lien is. claimed by a subcontractor, while under others no claim need be filed at all. The object of filing the claim is to give notice of the lien to all the world during the interval between the completion of the work and the beginning of the suit. No part of the proceedings to enforce mechanics' liens has been more fiercely litigated than the claim. Every possible attack that interest could suggest or ingenuity devise has been made on these claims for liens, and a majority of the liens that have been adjudged inadequate have come to grief because of some irregularity or informality in the claims on which they were based.

Effect of Failure to File Claim.

$ 375. Whenever the statute requires a claim to be filed, failure to file it destroys the lien.1 Actual notice of the lien does not

1 Arkansas Cent. R. Co. v. McKay, 30 Ark. 682; Walker v. Hauss-Hijo, 1 Cal. 183; Goss v. Strelitz, 54 Cal. 640; Southern California Lumber Co. v. Schmitt, 16 Pac. 516, 74 Cal. 625; Pacific Mut. Life Ins. Co. v. Fisher, 39 Pac. 758, 106 Cal. 224; Greeley, S. L. & P. R. Co. v. Harris, 20 Pac. 764, 12 Colo.