92 Tenn. 607 | Tenn. | 1893
This is a hill to enforce an alleged furnisher’s lien, under Chapter 108, Acts of 1889.
The cause is in this Court for the second time, having been here originally on demurrer, impeaching the constitutionality of the Act (90 Tenn., 468), and coming up now on appeal from decree dismissing the bill on the merits.
On final hearing it was shown, under proper pleadings, that defendant, Tails, as owner, contracted with one Kempe, as original contractor, to make certain improvements upon a lot of ground in the city of Memphis; that complainant, under contract with Kempe, furnished certain materials, which he used in making those improvements, and for which he failed to make payment; that complainant thereupon gave Falls notice of its intention to 'claim a lien upon the property improved, and, within ninety days thereafter, filed this bill to enforce the lien.
The Chancellor was of opinion, . and adjudged, that the notice was not given at such time as to fix a lien upon the property; and, for that and other reasons, he dismissed the bill.
Complainant’s contract with Kempe expired on the eighteenth of December, 1889, that being the day on which it furnished the last of the materials it was employed to furnish. The notice was given on the twenty-eighth of February, 1890, and the improvements were, completed on the twenty-fourth of March, 1890.
Notice, otherwise good, has been held sufficient
Was a notice, given at such a time, efficacious to perfect complainant’s inchoate lien? The provision of Section 1, Chapter 103, Acts of 1889, is that a subcontractor, employed by the original contractor to perform labor or furnish materials, shall have a lien, provided he give notice of an intention to claim it within thirty days after the building is completed, or his contract shall expire, or he be discharged.
The period in which the notice before us was given is not embraced in that provision. The notice was not given within thirty days after the expiration of complainant’s contract, nor within thirty days after the building was completed, nor within thirty days after complainant was discharged; for complainant was not discharged at all, and the notice was given seventy days after the expiration of its contract, and twenty-four days before the completion of the building.
But it is contended on behalf of complainant
The second section, of Chapter 118, Acts of 1845-6, gave the subcontractor a lien, on condition that he should give the owner of the property notice of his intention to rely upon it at the time he began to work or furnish materials. Code, § 1986. That provision wTas amended by Section 2, Chapter 67, Acts of 1881, so as to authorize the notice to be given when the subcontractor began to work or furnish materials, or during the progress of the work, or after its completion, and before the contractor has been paid. Code (M. & V.), § 2746.
Such was the state of the law on this subject when the Act of 1889 was passed. Hence, if the provision of that Act with respect to notice, is to be taken as but an enlargement of previous legislation, as was that of the Act of 1881, there can be no doubt that the present law (See. 1, Ch. 103, Acts 1889), so enlarged, gives all the scope contended for by counsel of complainant, and authorizes the subcontractor to give notice at any time from the commencement of his contract to the end of thirty days after the completion of the building.
The amendment made by the Act of 1881 was by addition, but the amendment made by the Act of 1889 was by substitution. This is obvious from the language of the respective Acts.
The original provision of the Act of 1845-6, as carried into the Code, is as follows: “ Every journeyman, or other person employed by such mechanic, founder, or machinist to work on the building, fixture, machinery, or improvement, or to furnish materials for the same, shall have this lien for his -work or materials, if, at the time he begins to work, or furnishes the materials, he noti-. fies' the owner of the property, in writing, of his intention to rely upon the lien.” Code, § 1986.
The Act of 1881 provides: “ That § 1986 of the Code be, and is hereby, amended by adding thereto the following, viz: Such person shall also have a lieu, if such- written notice is served on the owner during the progress of the work, or after its completion, and before the contractor has been been paid.” Acts 1881, Ch. 67, Sec. 2; Code (M. & V.), § 2746.
The Act of 1889 provides: “ That Section 2 of the Act. of the Legislature of 1881, Chapter 67, above referred to in this caption, shall be amended so as to read as follows, viz.: ‘Every journeyman, or other person, employed by such mechanic,
That the Legislature intended this last provision to stand in the place of all former legislation on the particular subject then in hand, with the modifications therein made, is unmistakably manifested by the introductory words, declaring that the previously existing law “ shall be amended so as to read as follows,” and also by the further fact that the language following that declaration covers the whole subject embraced in the amended law.
It is a clear case of amendment by substitution and repeal by implication. Terrell v. State, 86 Tenn., 523; Poe v. State, 85 Tenn., 495; The Druggist Cases, Ib., 450.
When this case was here at a former term, it was held that the previous Act% on this subject were “ amended and superseded by the first section of the Act of 1889.” ' 90 Tenn., 471.
It may be suggested that the last provision was obviously intended to better the situation of the
Since the notice before us was not given at such time as to perfect complainant’s lien, in whatever form it may have been, it is not necessary that its sufficiency or insufficiency as to identification of the property on which the lien was claimed should be decided.
The questions of estoppel and personal liability of Balls for complainant’s debt will be disposed of orally.
Affirm, with costs.