have liens, and in others not, depending upon the language of the statute, the terms of the contract, and the condition of accounts between owner and contractor at the time of the abandonment. Thus, a statute making the owner liable to a subcontractor to the extent of the stipulated price remaining unpaid when the lien is filed has been decided not to require, directly or inferentially, that the contractor shall have fully performed his contract.135 And where the statute declares that, on service of notice of the subcontractor's claim, "the owner shall be liable for the amount of such claim," the fact of the general contractor's failure, and the consequent necessity for the completion of the work by the owner, does not affect the owner's liability to the subcontractor. 136

§ 85. Where the contractor abandons the work at a time when there is nothing due him according to the contract, and the building is not completed under the contract, the subcontractors and material men in the second degree have, according to the majority of the decisions, no lien.137 But where the contract provides that the contractor is to be paid in installments as the work progresses, and he has earned one of the installments, and the subcontractor has by notice fixed his lien upon such installment, the subsequent default of the contractor before such installment is naid will not destroy the subcontractor's lien so far as that installment is concerned.1 138 Where a building contract expressly provides that the owner may complete the work in case of the contractor's default, and deduct the expense from the contract price, failure of the contractor to complete the work does not prevent the lien of a subcontractor from attaching to the balance due the contractor after the owner's completion of the work, since in that case the building is in fact com

135 Wright v. Roberts, 43 Hun, 413; Van Clief v. Van Vechten, 1 N. Y. Supp. 99, 48 Hun, 304.

136 Shenandoah Val. R. Co. v. Miller, 80 Va. 821.

137 Beecher v. Schuback, 23 N. Y. Supp. 604, 4 Misc. Rep. 54; Larkin v. McMullin (N. Y. App.) 24 N. E. 447, reversing 14 Daly (N. Y.) 311; Hollister v. Mott, 29 N. E. 1103, 132 N. Y. 18, reversing 10 N. Y. Supp. 409, 57 Hun, 585; Dingley v. Greene, 54 Cal. 335.

188 Russ Lumber & Mill Co. v. Roggenkamp (Cal.) 35 Pac. 643; St. Paul's Church v. Giraud, 15 La. Ann. 124; Whittier v. Blakely, 11 Pac. 305, 13 Or. 546; Graf v. Cunningham, 16 N. E. 551, 109 N. Y. 369; Drake v. O'Donnell, 49 How. Prac. (N. Y.) 25.

139

pleted under the contract.1 In such case the cost of completing the work, and of remedying defects left by the contractor, is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens,140 and if such deductions together with payments previously made to the contractor equal or exceed the entire contract price, then of course the subcontractors and material men have no lien, since there is nothing due under the contract.1 141 Thus, it has been decided that in a suit by a subcontractor for a mechanic's lien, where the original contractor has failed to complete his contract, the owner is only liable for so much as the work and materials are shown to be reasonably worth according to the original contract price, after deducting what has been rightfully paid under the contract, and the damages, if any, sustained by the owner from the nonfulfillment of the contract.142 But where the contract makes no provision for the completion of the work by the owner on the contractor's default, and the contractor abandons the work without cause, and without right to compensation, the fact that the owner himself completes the work does not give the subcontractors any right to compensation, since such completion cannot be said to be done under the contract.148 Where a building contract provided for payment to the contractors “every thirty days, in such sum as shall be certified by the architect, but twenty per cent. shall be retained until the final completion

139 Blakeslee v. Fisher, 21 N. Y. Supp. 217, 66 Hun, 261; Sheffield v. Loeffler, 3 N. Y. Supp. 150, 50 Hun, 606; Van Clief v. Van Vechten, 29 N. E. 1017, 130 N. Y. 571; Foshay v. Robinson, 32 N. E. 1041, 137 N. Y. 134; Foshay v. Boyd, 16 N. Y. Supp. 817, 62 Hun, 619; Ogden v. Alexander, 35 N. E. 638, 140 N. Y. 356; Wheeler v. Scofield, 67 N. Y. 311.

140 Powers v. City of Yonkers, 21 N. E. 132, 114 N. Y. 145; Frazier v. McGuckin, 9 N. Y. Supp. 435, 58 N. Y. Super Ct. 71; Hall v. Wills, 3 La. Ann. 504. This is so even where the work is completed by the sureties on the contractor's bond with the consent of the owner. McChesney v. City of Syracuse (Sup. Ct.) 22 N. Y. Supp. 507, 27 N. Y. Supp. 508; Id., 75 Hun, 503.

141 Hutton Bros. v. Gordon, 23 N. Y. Supp. 770, 2 Misc. Rep. 267; Ferguson v. Burk, 4 E. D. Smith (N. Y.) 760; Watson v. Cone, 21 N. Y. Supp. 224, 66 Hun, 632; Jewell v. Paron, 53 N. W. 951, 94 Mich. 83; Dudley v. Jones, 14 S. W. 335, 77 Tex. Sup. 69.

142 Mehrle v. Dunne, 75 Ill. 239; Morehouse v. Moulding, 74 Ill. 322.

143 Hollister v. Mott, 29 N. E. 1103, 132 N. Y. 18; Allen v. Carman, 1 E. D. Smith (N. Y.) 692.

of the contract," and the contractors abandoned the work, which was completed by the owners, it was held that the 20 per cent. retained by the owners never became due the contractor, and there was nothing to which a material man's lien filed after the abandonment by the contractors could attach.1** In a recent case in New York it appeared that the defendant employed a carpenter to build a house. The carpenter employed plaintiff to dig the foundation for a certain sum. Afterwards, defendant's architect ordered the excavation for the foundation to be increased, and the whole was done under the direction of the architect. Before the foundation was finished, the carpenter fell sick, but the house was finished by other persons on the foundation made by plaintiff. Defendant had paid nothing to the carpenter, and the foundation was fully worth the agreed price. On this state of facts it was held that the plaintiff was entitled to a lien for the work done by him.1

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DIVISION IV. QUANTUM MERUIT.

Failure without Fault to Complete Work.

146

§ 86. A mechanic who has in good faith attempted to fulfill his contract, but who has been prevented without his fault from fully completing the work, may have a lien for the reasonable value of the work and materials furnished by him,' as where the completion of the work is prevented by the owner's breach of the contract,147 or where he fails to pay installments of the price already earned,148 or where he wrongfully discharges the mechanic,149 or where he refuses to permit the mechanic to finish the work,150 where the owner is a corporation and the contract is ultra vires.151 And, if the contractor is thus entitled to a lien upon a quantum

144 Kelly v. Bloomingdale, 34 N. E. 919, 139 N. Y. 343. 145 New v. Carroll, 26 N. Y. Supp. 320, 73 Hun, 564.

146 Beha v. Ottenberg, 6 Mackey (D. C.) 348.

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

or

148 Hunter v. Walter, 12 N. Y. Supp. 60, 58 Hun, 607, affirmed in 29 N. E. 145, 128 N. Y. 668; Carew v. Stubbs, 30 N. E. 219, 155 Mass. 549.

149 Watrous v. Davies, 35 Ill. App. 542.

150 Howes v. Wireworks Co., 48 N. W. 448, 46 Minn. 44.

151 Newcastle N. Ry. Co. v. Simpson, 26 Fed. 133.

meruit, the subcontractors are also entitled to liens to the extent of the amount due the contractor.152 In a case in Illinois it appeared that a mechanic agreed to do certain work at a stated price, upon the representation of the person for whom the work was to be done as to the amount and character of the work required, whereas the work was of a different and more expensive character than represented. The mechanic did not personally examine into the character of the work to be done, and sent his men to execute it, he being absent from the time the agreement was made; and the court held that he was entitled to a lien for the actual value of the work, though this was in excess of the stipulated price.1

153

When Recovery Allowed on Quantum Meruit.

§ 87. It has been said by one court that, notwithstanding a mechanic has a special contract for work done by him, his action need not be upon the contract, but may be for the reasonable value of the work; 154 but this should probably be taken with the qualification that the work, through no fault of the mechanic, did not quite conform to the requirements of the contract. It is held in Massachusetts that if labor and materials have been furnished and used in the erection of a building, under an entire contract, so far as the labor and materials are concerned, but with no stipulation for any definite price, a lien may exist for the value of the labor, although there is none for the materials.1 Where there can be no lien for work done under a written contract, the rescinding of such contract after the work is done will not give the contractor the right to a lien on a quantum meruit, on the theory that the work was done under an implied contract.156 After the parties have waived the time of performance, the contractor cannot abandon the work and claim a lien for a quantum meruit because of the owner's default until the contractor has demanded performance, and the owner has failed to perform within a reasonable time thereafter.157 Under

155

152 Mayer v. Mutchler (N. J. Err. & App.) 13 Atl. 620.

153 Martine v. Nelson, 51 Ill. 422.

154 Kick v. Doerste, 45 Mo. App. 134.

155 Felton v. Minot, 7 Allen (Mass.) 412.

156 Clark v. Kingsley, 8 Allen (Mass.) 543.

157 Lawson v. Hogan, 93 N. Y. 39. But where the owner is not only in de

a contract to build several houses for an entire price, the builder cannot claim a lien on one of them for the value of the labor and materials furnished in its construction, since his rights are governed by his contract.1

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fault as to time, but has actually abandoned the contract, no such demand is necessary. Powers v. Hogan, 67 How. Prac. (N. Y.) 255, 12 Daly (N. Y.) 444. 158 Childs v. Anderson, 128 Mass. 108.

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