Ayres v. Revere

| N.J. | Jun 15, 1856

The Chief Justice

delivered the opinion of the court.

This action is brought to enforce a mechanic’s lien, under-the special provisions of the act of 1853, (Nix. Dig. 487). The building against which the lien is sought to be enforced was erected, in whole or in part, by contract in writing. The owner claims exemption from the lien, on the ground, that the contract was filed in the office of the clerk of the county in which the building is situate, pursuant to the provisions of the second section of the act. The plea avers tliat the contract was filed within the time limited by the statute. But it also appears, by the plea, that there was a specification annexed to the contract, which was not filed. The first question raised by the demurrer is, whether the filing of the contract without the specification is a filing of the contract within the meaning of the statute.

The second section of the act provides, that when any building shall be erected in whole or in part by contract in writing, such building and the land whereon it stands shall be liable to the contractor alone for work done or materials furnished in pursuance of such contract; provided such contract, or a duplicate thereof, be filed in the office of the clerk of the county where the building is situate before such work done or materials furnished. The plain design and operation of this section is to exempt buildings erected by contract from the encumbrance of all liens, except those of the contractor himself.

The exemption, however, extends only to work done and materials furnished in pursuance of the contract. It applies to buildings erected by contract, either in whole or in part. One design of requiring the contract to be filed, must have been to apprize all mechanics and mate rial men to what extent the building was exempt from liens, and how far they must look to the responsibility of the builder alone for their remuneration. If the contract simply state that the builder is to do such part of the work, and to furnish such portion of the materials as are contained in the specifications, it is obvious that the contract, independent of the specification, fails to furnish the very information contemplated by the statute. In such case the specifications become an essential part of the contract, not only as between the owner and builder, but also' as between the owner and the mechanics and material men who may have liens upon the building. A contract may, perhaps, be so drawn that the specification shall form no necessary part of the contract ■within the purview of this act. They may constitute no essential part-'of the contract as between the owner and lien holder. ■But the contract in the present case in express terms declares, that the specifications and plans, signed by the .parties, shall -be made and considered to be a .part of the agreement. It further declares, that the builder shall find and provide at his own proper cost and expense, all the materials, of .every kind and description, necessary for the erection of said house, according to the said plans and specifications, except where it is otherwise stipulated, expressed, or agreed, in and by said specifications. What part of the materials are to be furnished -by the builder appears not by the contract, but by the specifications, and •for aught that appears by the contract, the very materials which form the subject matter of the present claim may ■not have been furnished in pursuance of the contract and consequently the building may be liable to the lien. The legislature could never have intended that the persons doing work or furnishing materials for a building-should be driven to an action in order to discover whéther or not their claims constituted a valid lien upon the building. The beneficial design of the act must have been to enable parties interested, before the work was done Or materials furnished, to ascertain whether they must look to the responsibility of the builder or-may rely upon the security of the building itself. Where, therefore, the material provisions of the agreement are contained only in the specifications, they become an essential part of the contract, and ■must be filed in order to meet the requirements of the statute. Without them the contract, in - contemplation of the ■statute, is not filed.

But the defendant insists that, though his pleas be in- - sufficient, judgment must nevertheless be for the defendant, on the ground that the declaration is defective in ■ substance. The statute provides that the lien may -be enforced by suit, wliieh shall be commenced against the builder and the owner of the land and building. The suit is against the owner and the administrators of the builder.

The lien and the mode of enforcing it are creatures of the statute. They are unknown to the common law. The statute charges the property of one man with the debt of another. Though the owner may have paid the contract- or in full for the erection of the building and for all the materials used in its construction, his property is nevertheless charged by the default of the contractor with the repayment of the debt. It gives preference to one class of creditors over another. The man who has furnished a brick, or a stone, or a plank, for the erection of the building, or who has labored a day in its construction, is secured his remuneration in full, while those who have furnished provisions for the o wiser and his family, who have supplied them with the necessaries of life, or who have toiled in their service, are deprived of all means of recompense until the favored creditors are satisfied. It reaches to the claims of mortgage and judgment creditors, and supersedes even these encumbrances, if created after the building is commences, in favor of the subsequently created debts of a favorite class of creditors. It gives to the favored creditor a remedy not only against his debtor, but against an innocent third party, with whom he has never contracted, and for whom he has never labored. It gives him a cumulative remedy, which, if enforced, may compel the owner to pay a debt which he has once satisfied in full; and it may be, as in this instance, that this hardship will result from mere inadvertence in filing his contract, or from misapprehension of the precise meaning of a statute.

These suggestions are not made with the design of impugning the wisdom or the policy of the law, but to show that the statute is not of that purely remedial character which calls for a peculiarly liberal construction at the hands of the court. The statute has prescribed the moda of proceeding to enforce the lien. It has directed, in explicit terms, that the remedy shall he by suit against the builder and owner.

The former lien law, which was repealed and superseded by the existing law, authorized the suit to enforce the lien, to be not only against the debtor and owner, but against their executors or administrators. Rev. Stat. Y42, ■| 2. There may have been design, ón the part of the legislature, in restricting this peculiar remedy to the builder and owner, to th'e exclusion of their representatives. • Nor is it difficult to conceive reasons why this should have been done. But it is enough tó say ita lex scrijota, est.

Neither a sound construction of the statute, nor the promotion of the ends of justice requires that the statutory». remedy should be extended beyond the obvious de- ■ sign and clear requirements of the law.

There must be judgment for the defendant.

Cited in Babbitt v. Condon, 3 Dutch. 162; Budd v. Lucky, 4 Dutch. 485 ; Robins v. Bunn & Barber, 5 Vr. 335 ; James R. Dey, In re, 9 Blatch. 292.