contractor cannot unite in a joint claim.541 A joint claim, however, is proper when the claimants are co-partners, and it need not allege the partnership, or state that they claim as co-partners.542 Where the claimants are partners, and are designated in the claim for lien by the partnership name, the mention of the individual names of the partners is not essential to the validity of the claim.543 And, where the individual names of the partners are correctly stated, an error in stating the firm name is not fatal.5** A statute requiring the claim to state the names and residences "of all the claimants" means such claimants only as are interested in the particular claim.545 Under the provision of the Washington lien act of 1893, allowing claimants to join in the enforcement of their liens, the joint claim of two persons claiming separate liens is valid.*

546

Allegations as to Notice.

§ 446. In Pennsylvania, where the claim is required to show a state of facts establishing the claimant's right to a lien, it is held that the claim must allege that notice of the intention to file the claim has been given to the owner, since the statute requires such notice to be given; 547 and the omission of such allegation is cause for striking off the claim,548 although it was held in one case, under a statute afterwards declared unconstitutional, that, where the own er is also contractor, it is not necessary that the mechanic's lien claim filed should aver that notice of the amount and character of the claim was given.549 But in Indiana, under a statute which declares that the claim filed with the recorder must specify the amount of the claim, and a description of the property, it has been held that, al

541 Barker v. Maxwell, 8 Watts (Pa.) 478.

542 Knabb's Appeal, 10 Pa. St. 186; Miller v. Faulk, 47 Mo. 262.

548 Pierce v. Osborn, 19 Pac. 656, 40 Kan. 168.

544 Shattuck v. Beardsley, 46 Conn. 386.

545 Morgan v. Taylor (Com. Pl.) 5 N. Y. Supp. 920.

546 Hopkins v. Mill Co., 39 Pac. 815, 11 Wash. 308.

647 Foster v. Montanye, 7 Kulp, 14; Dreibelbis v. Seazholtz, 8 Pa. Co. Ct. R. 655; Purvis v. Ross, 12 Pa. Co. Ct. R. 193.

548 Dreibelbis v. Seazholtz, 8 Pa. Co. Ct. R. 655.

549 Harbolsheimer v. Totten, 7 Pa. Co. Ct. R. 665.

though a subcontractor or material man must, under the statute, notify the owner of his intention to acquire a lien, he is not bound to state the fact of such notice in the claim filed with the recorder.550

DIVISION III. RECORDING CONTRACT IN LIEU OF CLAIM.

In General.

§ 447. In some states a mechanic who claims a lien under a written contract is required to file such contract for record, in order to obtain a lien. 551 Sometimes the contract so filed takes the place of the ordinary claim, and sometimes it is filed as supplemental to the claim.552 Where the statute expressly requires the mechanic to file his contract for record, failure to file it usually bars his lien,553 though in Louisiana it only bars it as to third persons, 554 leaving it still in force as against the owner with whom the contract was made.555

550 Adams v. Buhler, 30 N. E. 883, 131 Ind. 66.

551 Southern California Lumber Co. v. Schmitt, 16 Pac. 516, 74 Cal. 625; Holland v. Wilson, 18 Pac. 412, 76 Cal. 434; Spinney v. Griffith, 32 Pac. 974, 98 Cal. 149; Morris v. Wilson, 32 Pac. 801, 97 Cal. 644; Shepherd v. Leeds, 12 La. Ann. 1; McRae v. Creditors, 16 La. Ann. 305; Lacoste v. West, 19 La. Ann. 446; Kohn v. McHatton, 20 La. Ann. 485; Van Loan v. Heffner, 30 La. Ann. 1213; Cox's Succession, 32 La. Ann. 1035; Abbott v. Nash, 29 N. W. 65. 35 Minn. 451; Barnacle v. Henderson, 60 N. W. 382, 42 Neb. 169; Campbell v. Fields, 35 Tex. 751; Lyon v. Elser, 12 S. W. 177, 72 Tex. 304.

In Arkansas, under a statute requiring the claimant to file "a just and true account containing a correct description of the property," it has been held that, as between the mechanic and the owner of the improvement, placing on record the written declaration of the party whose property is charged with the lien, containing the material facts necessary to constitute a lien, is a sufficient compliance with the provisions of law regulating the filing an account. Murray v. Rapley, 30 Ark. 568.

552 This refers only to filing the contract in order to obtain a lien. the contract for other purposes, see ante, §§ 77, 78.

As to filing

553 Spinney v. Griffith, 32 Pac. 974, 98 Cal. 149; Morris v. Wilson, 32 Pac. 801, 97 Cal. 644.

554 McRae v. Creditors, 16 La. Ann. 305; Lacoste v. West, 19 La. Ann. 446; Kohn v. McHatton, 20 La. Ann. 485. And all are third persons who are not parties to the contract. Van Loan v. Heffner, 30 La. Ann. 1213.

555 Townsend v. Harrison, 2 La. Ann. 174; Thompson v. Parrent, 12 La. Ann. 183; Roberts v. Hyde, 15 La. Ann. 51; Lacoste v. West, 19 La. Ann. 446.

556

Sometimes, however, the failure to record is excused. Thus, where the other party to the contract has wrongfully carried it out of the state, so that the mechanic cannot record it, he may have a lien, even though the contract is not filed for record.5 And where the statute does not expressly require original contractors to have written contracts, but provides that original contractors, journeymen, day laborers, or other persons seeking a lien shall file their contracts, but if such journeyman, day laborer, or other person have no written contract, it shall be sufficient to file a verified account of his claim, an original contractor may file a verified account to secure a lien, when he has no written contract.557

§ 448. In a case in Minnesota it appeared that a material man in the second degree had agreed by written contract to furnish to the contractor certain materials, part of which he furnished to the contractor before the original contract was canceled, and the residue of which be furnished afterwards to the owner, under an oral agreement that the owner should stand in place of the contractor. On these facts it was held that, in order to claim a lien for the materials furnished the owner, the material man need not record his contract with the contractor, although the statute declared that, in order to se oure a lien for labor done or materials furnished "as provided in a written contract, the same or a copy thereof shall be filed with the account herein required." Where the statute requires the contract to be recorded, a subsequent modification of a building contract must also be recorded, in order to preserve the lien.559 Under a contract to erect a building "conformable to the drawings and specifications made," the drawings and specifications are a part of the contract, and should be filed under a statute providing that all such contracts shall be filed in the office of the county recorder.560 And where, in filing a claim for mechanic's lien, the building contract filed there

558

556 McCormick v. Lawton, 3 Neb. 449. See ante, § 375, note 1.
557 Whiteselle v. Texas Loan Agency (Tex. Civ. App.) 27 S. W. 309.

558 Abbott v. Nash, 29 N. W. 65, 35 Minn. 451.

559 McClallan v. Smith, 11 Cush. (Mass.) 238.

560 Holland v. Wilson, 18 Pac. 412, 76 Cal. 434. Afterwards, however, this statute was amended so as not to require the filing of the plans and specifications. Reed v. Norton (Cal.) 26 Pac. 767.

with contains no mention of extra work, though the contract refers to the specifications, which contain a provision therefor, the lien does not attach for any extra work.561 A statute requiring the recording of the contract under which the lien is claimed is not satisfied by recording a promissory note given by the owner, or a draft on him, even though such draft or note recite on its face that it is given for materials furnished.562

§ 449. The California statute declares that all building contracts "shall be in writing when the amount agreed to be paid thereunder exceeds $1,000," and shall be recorded; "otherwise, they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien" therefor. Under this statute it has been held that

563

a contractor who has failed to record his contract for work, where the amount to be paid therefor is over $1,000, is not entitled to a lien; that when the original contractor had not filed his contract, and the material man had not filed any claim under the statute, the owner of the building was not liable for material furnished which he had not purchased; and that a subcontractor need not file his subcontract, even though his claim was for more than $1,000.565

564

561 Wright v. Meyer (Tex. Civ. App.) 25 S. W. 1122.

562 Shepherd v. Leeds, 12 La. Ann. 1; Cox's Succession, 32 La. Ann. 1035; Lyon v. Ozee, 17 S. W. 405, 66 Tex. 95; Lyon v. Elser, 12 S. W. 177, 72 Tex. 304. 563 Spinney v. Griffith, 32 Pac. 974, 98 Cal. 149; Morris v. Wilson, 32 Pac. 801, 97 Cal. 644.

564 Southern California Lumber Co. v. Schmitt, 16 Pac. 516, 74 Cal. 625. 565 Reed v. Norton (Cal.) 26 Pac. 767.

(459)

DIVISION IV. TIME FOR FILING.

§ 466-469. Need of Filing in Time.

470-473. Premature Filing.

474-475. When Time Begins to Run.

476-479. Completion of Contract.

480-483. Completion of Work for Which Lien is Claimed.

484. Completion of Subcontract.

485. Acceptance of Work.

486 487. Unnecessary Delay and Trivial Imperfections. 488-489. Constructive Completion.

490. Continuous Employment.

491-492. Maturity of Debt.

493-494. Computation of Time.

495. Filing after Death of Party.

DIVISION V. EFFECT OF FILING CLAIM. § 496-497. In General.