51 Ark. 309 | Ark. | 1888
This is a suit by Toors against Basham to enforce a mechanic’s lien. Basham, who was the owner of certain town lots, let a contract to one Moyer to improve a house situated thereon for a stipulated compensation. Moyer got Toors to furnish materials for the purpose. Moyer had not proceeded far with the work when he discovered that he would lose money by complying with the contract and abandoned it. He and Basham then agreed to divide the loss equally between them and Basham took up the work where Moyer left it and completed the improvement. Toors presented to Basham an account for the materials furnished to Moyer and used by him in repairing the house. Three several presentations of the account were made — one, before Basham and Moyer adjusted their dispute, another within ten days after the adjustment, and the third within ten days after the work was completed by Basham. The exact time of the first presentation is not shown and the testimony is conflicting as to whether the account was certified by Moyer when first presented, as it should have been.
The court instructed the jury that the presentation was in time if made within ten days after Basham had completed the work; refused to permit Basham to show that the market value of the materials was less than the amount certified ■to by Moyer; and after a verdict for the plaintiff, condemned the property to be sold to satisfy the lien. Basham appeals.
The appeal involves the construction of the Act of March 17th, 1885, under which the lien is asserted. The act is unnecessarily prolix and some of its provisions fall under the imputation contained in the observation of Blackburn, J., in Regina v. Scott, 4 Best & Smith, 374, in respect to an act passed in 1746, to the effect that ‘'the statute though hot drawn in modern times is somewhat obscure.” It is supplemental to the mechanic’s lien law as found in chapter 96 subdivision 11 of Mansfield’s Digest, and when read in connection with the provisions found there, its true intent and meaning are more apparent. It was intended, as its terms and title show, for the better protection of sub-contractors— a term which includes according to the statutory definition, all persons who are entitled to the lien except those who have contracted with the owner or proprietor of the land to be charged. Mansf. Dig., sec. 4422.
Now the only provision of the statute prescribing the rights of the sub-contractors in case the land-owner fails to reserve the fund for his benefit, is found in section 4 of the act. It. gives him a lien for “work or labor done, or materials, machinery or fixtures furnished.” Where the statute gives a lien for “materials,” without saying more, and they are not furnished under a contract with the owner, the extent of the lien is commonly held to be the market value of the materials when furnished. 2 Jones on Liens, sec. 1306; Deardroff v. Everhartt, 74 Mo., 37; Laird v. Moonan, 32 Minn., 358; Lee v. Burke, 66 Penn. St., 336; Cattanach v. Ingersoll, 1 Phil. R., 285.
The other provisions of the section relate only to the effect of the lien and the mode of enforcing it, and have no bearing on the extent or amount of it. It is not plain, therefore,,, that it was intended to preclude the owner by the agreement as to value between the contractor and material-man, and we should not make a judicial extension of the terms of the act. The court erred in holding that the value of the materials was not open to enquiry.
The language of the statute is that it must be within ten days “after such job or contract (that is the job or contract previously mentioned as having been let by the owner to a contractor,) as originally made or amended shall have been fully completed.” Section I, Act of March 17th, 1885. N ow as there is no contract and no privity of contract between the owner and the sub-contractor, the completion of the work under the contract mentioned in the statute must mean the contract of the owner with the person through whom the sub-contractor’s lien must be worked out, i. e., the contractor; and the completion of that contract is the period from which the sub-contractor must begin to compute the time allowed for the presentation of his account. The completion of the work under the contract need not be the completion of the contemplated improvement. It may be that only a part of the work has been let, or the completion of the structure may not be in present contemplation. And ■ so, when the contractor abandons his contract, the work under it must be regarded as completed within the meaning of the statute, else the sub-contractor could not enforce his lien at all when the owner has seen fit to pay off the contractor. As was said in Cattin v. Douglass, 33 Fed. Rep., 569, “It would be inequitable and unreasonable and contrary to the spirit of the law, to hold that parties are absolutely barred of all rights to the lien where the work is prematurely stopped or abandoned without fault of such parties, Such a construction would place the material-men and laborers at the mercy, dishonesty, fickleness or misfortune of the owner or contractor.” But if the work is completed for the purpose of enabling the sub-contractor to enforce his lien, it is completed so as to allow the owner to settle with the contractor after ten days have elapsed, and so bar the right to a lien. A change in the contract, or an “amendment” of it, as the statute has it, or a suspension of the work for a short period, will not affect the lien; but when the contractor abandons his contract after having done work under it, and the owner makes a new and independent contract with a stranger to the first one, or completes the work himself, the material-men and laborers under the first contractor cannot postpone the presentation of their claims to the completion of the improvement under the new contract, but must act within the prescribed period after the abandonment of the contract under which they have acquired their rights. 2 Jones on Liens, secs. 1438, 1440; see. Bertrand v. Byrd, 5 Ark., 651. The court erred in instructing the jury otherwise.
For the errors indicated, the judgment is reversed and the cause will be remanded for a new trial.