Materials Furnished but not Used.

§ 119. Whether there can be a lien for materials which, although furnished in good faith for the purpose of being used in a particular building, are in fact, without the connivance of the material man, used for some other purpose, and not actually incorporated into the building, is a question upon which the authorities are in hopeless conflict. On the one side, it is argued that the material man ought to have a lien because he intended to have the materials go into the building, and their diversion therefrom was a matter beyond his control, while, on the other hand, it is said that materials that do not go into the building do not add to the value of the realty, and therefore should not be made the basis of a lien. It cannot be said that there is any general rule on the subject.171

In an early case a distinction was drawn between materials furnished while the construction of the building was in progress, and

171 In the following cases it was said that there could be a lien although the materials were not actually used. Chicago Artesian Well Co. v. Corey, 60 Ill. 73 (in this case only a small part of the materials were diverted from the building); Neilson v. Railroad Co., 1 N. W. 434, 51 Iowa, 184; Watts v. Whittington, 48 Md. 357; Burns v. Sewell, 51 N. W. 224, 48 Minn. 425; Morris Co. Bank v. Rockaway Manuf'g Co., 14 N. J. Eq. 189; Beckel v. Petticrew, 6 Ohio St. 247; Wallace v. Melchoir, 2 Browne (Pa.) 104; Hinchman v. Graham, 2 Serg. & R. 170; Odd Fellows' Hall v. Masser, 24 Pa. St. 507; Hershey v. Gohn, 1 Penny. 40; Basch v. Sener, 1 Penny. 22; Linde Steel Co. v. Imperial Refining Co., 23 Atl. 800, 146 Pa. St. 4; Boyd v. Mole, 9 Phila. (Pa.) 118; Murphy v. Ellis, 11 Pa. Co. Ct. R. 301, 1 Pa. Dist. R. 397; Daniel v. Weaver, 5 Lea, 92; Mechanics' Mill & Lumber Co. v. Denny Hotel Co. (Wash.) 32 Pac. 1073; Esslinger v. Huebner, 22 Wis. 632; Central Trust Co. v. Chicago, K. & T. Ry. Co., 54 Fed. 598.

The following cases hold that there is no lien unless the materials are actually used: Lee v. King, 13 South. 506, 99 Ala. 246; Silvester v. Mine Co., 22 Pac. 217, 80 Cal. 510; Benick v. Muir, 23 Pac. 389, 83 Cal. 368; Id. 23 Pac. 390, 83 Cal. 373; Chapin v. Paper Works, 30 Conn. 473; Hunter v. Blanchard, 18 Ill. 318; Roose v. Commission Co., 36 N. W. 885, 74 Iowa, 51; Hill v. Bowers, 26 Pac. 13, 45 Kan. 592; Simmons v. Carrier, 60 Mo. 582; Fitzpatrick v. Thomas, 61 Mo. 515; Schulenberg v. Institute, 65 Mo. 295; Deardorff v. Everhartt, 74 Mo. 37; Heltzell v. Railroad Co., 20 Mo. App. 435; Current River Lumber Co. v. Cravens, 54 Mo. App. 216; Weir v. Barnes, 57 N. W. 750, 38 Neb. 875.

materials furnished after it was completed. It was said that while there might be a lien in the former case, even though the materials were not used in the building, yet there could be none in the latter case, since a material man who furnishes building materials for the construction of a building that is already completed fails to exercise common care and prudence, and is chargeable with knowledge that his materials cannot be used in the building.1 172 Where materials furnished by a subcontractor are neither actually used in the construction of the building, nor delivered at the building for use therein, there can be no lien therefor.17: There can be no lien for material contracted for and prepared, but never delivered.17

174

Materials Furnished for a Particular Building.

§ 120. There is no lien in the case of building material furnished on general account, without reference to its use in any particular building.175 Thus, a brickmaker who has furnished a large quantity of brick, under a general contract, to a contractor engaged in the erection of several distinct buildings, and who had no knowledge that any particular supply was going to any particular building, cannot enforce a lien for a balance due against one of the buildings

172 Olympic Theatre Case, 2 Browne (Pa.) 283. But it has been held in Iowa that, where part of the materials furnished to a factory were furnished after the machinery was running, such materials, if used to complete and perfect such machinery, might be the subject of a lien. German Bank v. Schloth, 13 N. W. 314, 59 Iowa, 316.

173 Foster v. Dohle, 24 N. W. 208, 17 Neb. 631; Marrener v. Paxton, 24 N. W. 209, 17 Neb. 634.

174 Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co., 15 C. C. A. 289, 68 Fed. 105.

175 Eufaula Water Co. v. Addyston Pipe & Steel Co., 8 South. 25, 89 Ala. 552; Cook v. Rome Brick Co., 12 South. 918, 98 Ala. 409; Chapin v. Persse & Brooks Paper Works, 30 Conn. 472; Mulrine v. Washington Lodge, 6 Houst. 350; Hill v. Braden, 54 Ind. 72; Colorado Iron Works v. Riekenberg (Idaho) 43 Pac. 681; Hill v. Bishop, 25 Ill. 307; Weaver v. Sells, 10 Kan. 609; Wagner v. Darby, 30 Pac. 475, 49 Kan. 343; Hatch v. Coleman, 29 Barb. 201; Lanier v. Bell, 81 N. C. 337; Horton v. Carlisle, 2 Disn. 184; Hills v. Elliott, 16 Serg. & R. 56; Gurney v. Walsham, 19 Atl. 323, 16 R. I. 698; Mills v. Manufacturing Co., 19 S. W. 328, 91 Tenn. 469; Whittier v. Banking Co., 30 Pac. 1094, 4 Wash. 666; Esslinger v. Huebner, 22 Wis. 632.

§ 121 in which a portion of the brick was used, under a statute granting such a lien for "materials furnished to be used" in a building.170 But the fact that material men claiming a mechanic's lien furnished to the owner other materials not used upon the land does not bar their right to a lien, when it appears that their accounts show just what materials were furnished for the land on which they claim a lien.177 Where a number of mechanics and material men agreed together that each should build a house for himself, and each should furnish work or materials to the others, it was held not to be necessary to prove that the particular articles for which a lien was claimed on one of the houses were furnished to that particular house, if the owner of such house was only charged with his proportionate share of the materials. 178 In determining whether materials have been furnished for a particular house, it has been said that the material man's charges must be made in such a manner that the owner, if he applies to the material man before he pays the contractor, may be able to discover the liability of his house.179

§ 121. While it is necessary to the lien that the material man knew when he furnished the materials that they were to be used in the building,180 yet, where material is purchased with the understanding of both parties that it will be used for the erection of a building in a certain town, a lien will attach to the lot on which the building is erected, though the precise location of the lot was not mentioned in the contract, or known to the material men at the time the contract was made.181 Materials furnished for the construc

176 Eisenbeis v. Wakeman, 28 Pac. 923, 3 Wash. St. 534.
177 Portones v. Badenoch, 23 N. E. 349, 132 Ill. 377.
178 Croskey v. Coryell, 2 Whart. 223.

179 Hills v. Elliott, 16 Serg. & R. 56. But a lien, on one of the buildings, of a material man who furnishes materials for the buildings of several owners, under an entire contract with a subcontractor, is not invalidated by the fact that he made a lumping charge in his ledger of the entire contract price of all the materials furnished by him, if the bill of items for each building is segregated in one of his books of original entry. Compound Lumber Co. v. Fehlhammer Planing-Mill Co., 59 Mo. App. 661.

180 Cook v. Rome Brick Co., 12 South. 918, 98 Ala. 409.

181 Wilson v. Howell, 29 Pac. 151, 48 Kan. 150; Schulenberg & Boeckler Lumber Co. v. Johnson, 38 Mo. App. 404; Atkins v. Little, 17 Minn. 342 (Gil. 320); Great Western Manuf'g Co. v. Hunter, 16 N. W. 759, 15 Neb. 32.

tion of a house on a specified lot cannot be the basis of a lien if used in building a house on another lot.182 The fact that materials were furnished for use in a certain building may be proved by parol where the written contract is silent on that subject; 183 and it may be proved by evidence of an express agreement, or by proof of circumstances from which the intended use may be inferred.18 Thus, the fact that materials were applied in constructing a certain building is evidence that they were furnished for that purpose, unless it otherwise appears that they were furnished for use in other buildings. 185 Materials furnished to a contractor upon the credit of a house which he is building, as soon as delivered to the contractor are considered the property of the owner of the house, and cannot be seized by the contractor's creditors.186 An existing building, which is sold for the purpose of constituting part of a larger building to be erected, may be considered material furnished for the construction of such larger building.187 Lumber which a builder obtained from a lumber dealer to prop up walls, agreeing to return it if not used in the building, and, if used, to notify the dealer, so that it might be charged, has been held to be "furnished" when the dealer was notified that it had been used in the building.188 It has been held in Alabama, under an act giving a lien for materials furnished for any building under contract with the owner, that where there is a sale of materials for a particular building, and nothing to exclude the idea that the ma182 Smith v. Barnes, 36 N. W. 346, 38 Minn. 240; Heaton v. Horr, 42 Iowa, 187.

183 Donahue v. Cromartie, 21 Cal. 80.

184 Choteau v. Thompson, 2 Ohio St. 114. But in California, in order to enable a materialman to enforce a lien upon a building for materials furnished, it must be alleged and proved, not only that the materials have been used in the construction of the building, but they must have been, by the express terms of the contract, furnished for the particular building on which the lien is claimed. Houghton v. Blake, 5 Cal. 240; Holmes v. Richet, 56 Cal. 307. 185 Martin v. Eversal, 36 Ill. 222. One who makes granite columns for a building contractor is entitled to a lien on the building in which they were used, though he did not know for what particular building the columns were intended when the labor was performed. Emery v. Hertig, 61 N. W. 830, 60

Minn. 54.

186 White v. Miller, 18 Pa. St. 52.

187 Selden v. Meeks, 17 Cal. 128.

188 Marble v. Lumber Co., 28 N. W. 309, 19 Neb. 732.

terial man will, if need be, look to the land for payment, the lien arises.18 And it has been held in Texas, under a statute giving a lien to any one "who may labor or furnish material to erect any house or improvement," that a contractor who agrees to prepare stone for and erect the walls of a building for the owner, who is to pay him in installments therefor, is entitled to a lien on the building and land for stone prepared for the building, but never delivered on the premises, nor actually used in its construction, when the owner has notified him that he could not comply with his contract, and he is compelled to cease work.190

Unnecessary and Defective Material.

§ 122. Where materials are furnished for a building, and are actually used in its construction, the lien therefor is not affected by the fact that such materials were not needed in the building, and were wastefully and unnecessarily put into it.191 Nor does the fact that they are not of the right quality necessarily destroy the lien, if they were of such a character as to justify their use in construction generally, and the material man was not aware that they were not adapted to the specific use for which they were purchased.192 But there can be no lien for materials furnished which are not necessary to the building, and are not actually used in its construction,193 nor for materials so plainly contrary to the specifications of the building contract that the furnishing of them constitutes a breach of such contract.194

Materials not Incorporated into the Building.

§ 123. Materials which, though used in constructing a building, do not remain incorporated in it, are sometimes the basis for a lien.

189 Eufaula Water Co. v. Addyston Pipe & Steel Co., 8 South. 25, 89 Ala. 552. 100 Trammell v. Mount, 4 S. W. 377, 68 Tex. 210.

191 Harker v. Conrad, 12 Serg. & R. 301; Woolsey v. Bohn, 42 N. W. 1022, 41 Minn. 235.

192 Odd Fellows' Hall v. Masser, 24 Pa. St. 507.

193 Boyd v. Mole, 9 Phila. 118.

194 Harlan v. Rand, 27 Pa. St. 511; Boynton Furnace Co. v. Gilbert, 53 N. W. 1085, 87 Iowa, 15.