102

no lien.1 This has been held under statutes giving a lien to every subcontractor, mechanic, workman, or other person who shall, in conformity with the terms of the contract between the owner and the original contractor, perform any labor or furnish any materials; 103 giving a lien to "any person who shall, by virtue of a contract with the owner," or "in pursuance of an agreement with such contractor," do work on a building; 104 giving a lien to persons who do work or labor in the construction, etc., of a building, "at the request of any person who had entered into a contract, whether in writing or not, for such construction"; 105 giving a lien to "any person to whom a debt is due for labor furnished by virtue of an agreement with or by consent of the owner, or any person having authority from, or rightfully acting for, such owner"; 106 and giving a lien to any one performing labor or furnishing ma

102 Turcott v. Hall, 8 Ala. 522; Monroe v. Hannan, 7 Mackey (D. C.) 197; Howard v. Moore, 20 Fla. 163; Rothgerber v. Dupuy, 64 Ill. 452; Ahern v. Evans, 66 Ill. 125; Smith Bridge Co. v. Louisville, N. A. & St. L. Air-Line R. Co., 72 Ill. 506; Cairo & St. L. R. Co. v. Watson, 85 Ill. 531; Berkowsky v. Sable, 43 Ill. App. 410; Nixon v. Cydon Lodge, 43 Pac. 236, 56 Kan. 298; Wood v. Donaldson, 17 Wend. (N. Y.) 550, 22 Wend. (N. Y.) 395; Heroy v. Hendricks, 4 E. D. Smith (N. Y.) 768; Stephens v. Railroad Co., 29 Ohio St. 227; Harlan v. Rand, 27 Pa. St. 511; Schenck v. Uber, 81 Pa. St. 31; Kitson v. Crump, 9 Phila. (Pa.) 41; Morrison v. Whaley, 19 Atl. 330, 16 R. I. 715; Geddes v. Bowden, 19 S. C. 1; McGugin v. Railroad Co., 10 S. E. 36, 33 W. Va. 63; Kirby v. McGarry, 16 Wis. 68; Harbeck v. Southwell, 18 Wis. 418.

There are, however, some decisions to the contrary. Thus, in Mears v. Stubbs, 45 Iowa, 675, it was held that a subcontractor in the second degree might have a lien, even though the statute did not expressly so provide; and in Lumbard v. Railroad Co., 64 Barb. (N. Y.) 609, a subcontractor in the second degree was decreed a lien under a statute which gave a lien to any person for work done under contract "either with the owner or with any contractor." This last case was reversed on another ground in Lumbard v. Railroad Co., 55 N. Y. 491, but the right to a lien of a subcontractor in the second degree was not denied. In Duignan v. Montana Club, 40 Pac. 294, 16 Mont. 189, the right of subcontractors in all degrees to liens was asserted.

103 Rothgerber v. Dupuy, 64 Ill. 452.

104 Heroy v. Hendricks, 4 E. D. Smith (N. Y.) 768. 105 Morrison v. Whaley, 19 Atl. 330, 16 R. I. 715.

106 Geddes v. Bowden, 19 S. C. 1.

terial in the construction of a building by virtue of any contract with the owner thereof, or his agents, or in pursuance of an agreement with one who has contracted with the owner.107 Even in states where subcontractors in the second degree have liens, they cannot have a lien if the contractor has, before they gave notice, paid the subcontractor in full, even though the owner is still indebted to the contractor.108

Subcontractors in Third Degree.

§ 238. Those who contract with the subcontractor of a subcontractor may be designated as subcontractors in the third degree. Their rights as mechanic's lien claimants have not often been adjudicated, and what decisions there are do not seem to be very harmonious. It has been held in Colorado that, in the absence of a statutory provision therefor, a subcontractor in the third degree is not entitled to a mechanic's lien,109 while in Montana subcontractors in the third degree are entitled to a mechanic's lien under a statute providing that "all persons furnishing things or doing work shall be considered subcontractors." 110 It may be taken for granted that in states where subcontractors in the second degree have no liens, those in the third degree have none.

DIVISION III. WORKMEN.

In General.

A mere workman or laborer, who is not employed to perform any distinct piece of work, but merely to labor by the day under the direction of others, cannot be said to be either a "contractor" or "subcontractor," as these words are commonly used. Accordingly, his right to a lien, especially when he is not a mechanic, is a question of doubt, unless the statute expressly gives it to him. Thus, it was early held in Pennsylvania that a journeyman

107 McGugin v. Railroad Co., 10 S. E. 36, 33 W. Va. 63.

108 Lumbard v. Railroad Co., 55 N. Y. 491; French v. Bauer (Com. Pl.) 11 N. Y. Supp. 69.

109 Sayre-Newton Lumber Co. v. Union Bank (Colo App.) 41 Pac. 844. 110 Duignan v. Montana Club, 40 Pac. 294, 16 Mont. 189.

was not entitled to a mechanic's lien, because he was not within the spirit of the mechanic's lien law.111 And to warrant enforcement of a mechanic's lien, under the Georgia laws, the claimant must be a mechanic, and must have contracted for and performed the work in that capacity.112 But at present the tendency is to extend to workmen, as well as mechanics, the benefit of the mechanic's lien laws, and in most of the states workmen are within the express terms of the acts. In one recent case it was said that it cannot be objected that a claim which is for labor on a building is not that of a mechanic, within the lien law.113 And workmen employed by contractors, as well as those employed directly by the owner, may have liens. 114 The liens of such workmen, however, like those of subcontractors, depend upon the lien of the contractor who employs them. Where a contractor has no lien, because he has failed to comply with an act requiring him to record his contract, laborers employed by him have no lien.115 And, where the contractor abandons his job before finishing it, his workmen have a lien only on a proportional part of the amount due him, if any, and not of the entire contract price.116 And, in general, any defense the owner has as against the contractor he may make as against the contractor's workmen.117 The lien given by the Indiana statute to persons performing labor in the construction of a rail

111 Jobsen v. Boden, 8 Pa. St. 463. See, too, section 75, ante. 112 Savannah, G. & N. A. R. Co. v. Grant, 56 Ga. 68. But in the case of Adams v. Goodrich, 55 Ga. 233, it was said that a laboring mechanic who performs actual manual labor for his employer is as much entitled to a laborer's lien on his property for the value of the services performed by him as any other class of laborers.

113 Vincent v. Mill Co., 35 Pac. 396, 7 Wash. 566.

114 Parker v. Mining Co., 61 Cal. 348; Dewing v. Society, 13 Gray (Mass.) 414; Weeks v. Walcott, 15 Gray (Mass.) 54; Pilz v. Killingsworth, 26 Pac. 305, 20 Or. 432; In re Cornish, 6 Ont. 259. Contra, Greenough v. Nichols, 30 Vt. 768.

115 Allen v. Wills, 4 La. Ann. 97; First Municipality v. Bell, Id. 121; Jorda v. Gobet, 5 La. Ann. 431; Whitla v. Taylor, 6 La. Ann. 480.

116 In re Cornish, 6 Ont. 259.

117 Reeve v. Elmendorf, 38 N. J. Law, 125. Therefore no lien exists in favor of a laborer beyond the amount due from the owner of the property to the contractor. O'Donnell v. Kramer, 65 Cal. 353, 4 Pac. 204; McLaughlin v. Goodchaux, 7 La. Ann. 101.

road is measured by the reasonable value of such labor, and not by the terms of the contract between the laborer and the contractor.118 As a general rule, workmen employed by subcontractors have no lien, being too remotely connected with the owner of the property.119 A statute giving a lien to "all laborers who shall perform work and labor" applies only to laborers, as distinguished from artisans; 120 and a teamster is a "laborer," within an act giving "laborers" a lien on any structure for work performed by them thereon, and on the interest of the owner of the land on which it stands.1 Nor can a person have a "laborer's lien" for work done by others hired by him.122

121

§ 240. In New Jersey, where the owner has reasonable cause to dispute the claim of a workman who notifies him of the contractor's refusal to pay, the workman cannot sue the owner until he has first established his claim by obtaining judgment against the contractor.123 And, under a statute providing that an owner who is not a party to the contract under which work is done may prevent a lien for such work by giving the workmen notice that he will not be responsible therefor, it is held that a landowner, under contract with whom a builder is erecting a house upon the land, cannot prevent the attaching of the liens of the builder's workmen for labor thereon by orally forbidding them to perform it.124 Where the statute makes a contract with the owner of the land essential to the existence of a lien, a workman performing labor on a building under a contract with one who is employed by the owner of the building, but who is not the owner of the land, and has not contracted with such owner for erecting, altering, or repairing the building, or for the purchase of the land, has no lien, either on the

118 Chapman v. Railway Co., 39 N. E. 289, 11 Ind. App. 632.

119 Turcott v. Hall, 8 Ala. 522; Howard v. Moore, 20 Fla. 163; Utter v. Crane, 37 Iowa, 631; Rothgerber v. Dupuy, 64 Ill. 452; Berkowsky v. Sable, 43 Ill. App. 410; Wood v. Donaldson, 22 Wend. (N. Y.) 395. Contra, Clark v. Kingsley, 8 Allen (Mass.) 543. And see ante, § 199.

120 Dano v. Railroad Co., 27 Ark. 566.

121 McElwaine v. Hosey, 35 N. E. 272, 135 Ind. Sup. 481.

122 Cochran v. Swann, 53 Ga. 39.

123 Reeve v. Elmendorf, 38 N. J. Law, 125.

124 Shaw v. Tompson, 105 Mass. 345.

125 And

land or on the building, to secure the payment of his wages. under a statute providing that laborers shall have a lien for work done, and that the whole contract price, except that part due the contractor, shall be payable in money, without regard to any contract made between the landowner and contractor, the laborer may enforce a lien, though the contract price is payable in something other than money, when it remains unpaid at the time the claim is filed and the action begun.12

DIVISION IV. MATERIAL MEN.

Material Men in First Degree.

§ 241. A material man in the first degree is one who furnishes directly to the owner materials to be used in the construction or repair of a building or other improvement on land. Contractors may furnish materials, and have a lien therefor; but mere material men are not contractors, since they neither do any work on the building themselves, nor furnish any such work.127 And even though the material man does some incidental work, in fitting the materials to the building and placing them in it, that is not suffi cient to change him from a material man to a contractor.128

§ 242. Therefore material men have no lien where the statute merely provides that "all artisans, builders, and mechanics of every description, who shall perform any work, shall have an absolute lien on such building for such work, as well as for materials furnished by them"; 129 or where it gives a lien to "any mechanic or

125 Belding v. Cushing, 1 Gray (Mass.) 576.

126 Schmid v. Busch, 31 Pac. 893, 97 Cal. 184.

127 Duff v. Hoffman, 63 Pa. St. 191; Hart's Appeal, 96 Pa. St. 355; Mulrine v. Washington Lodge, 6 Houst. (Del.) 350; Curlett v. Aaron, Id. 477; Arnold v. Budlong, 11 R. I. 561; Sparks v. Mining Co., 55 Cal. 389; Hinckley v. Cracker Co., 27 Pac. 594, 91 Cal. 136; Stevens v. Wells, 4 Sneed. (Tenn.) 387; Pitts v. Bomar, 33 Ga. 96; Footman v. Pusey, 45 Ga. 561; Davis v. Betz, 66 Ala. 206. Contra, Hooker v. McGlone, 42 Conn. 95; Matthews v. Association, 19 S. W. 150, 83 Tex. Sup. 604; Ambrose Manuf'g Co. v. Gapen, 22 Mo. App. 397.

128 Arnold v. Budlong, 11 R. I. 561; Hinckley v. Cracker Co., 27 Pac. 594, 91 Cal. 136.

129 Duncan v. Bateman, 23 Ark. 327; Boutner v. Kent, Id. 389.