60 Minn. 54 | Minn. | 1895
Action to enforce a mechanic’s lien under Laws 1889, c. 200 (G. S. 1894, §§ 6229-6246). The Matt Breen Stone Works and Thomas M. Breen had a contract with the defendant Hertig to furnish the granite to be used in the construction of a building for the defendant bank, of which Hertig was the president. The evidence is not very clear or satisfactory as to whether Hertig made the contract with the Breen Stone Works and Breen for the bank in his representative capacity as president, or made it alone to inure to the use and for the benefit of the bank. While- Hertig testified that he made the contract, he also testified that he was doing it for the bank. We do not regard this question very material, for Hertig seems to have been treated in this action as the contractor and the Matt Breen Stone Works and Thomas M. Breen as subcontractors. The granite furnished was to be used in the construction of the bank building, whoever was the owner, and without regard to who made the contract. The Breen Stone Works and Breen agreed with Hertig to furnish the polished granite columns to be used in the erection of a two-story brick and Stone building to be erected on premises owned by Hertig until about August 16, 1892, when he conveyed them to the defendant bank. The building was in process of erection at the city of St. Cloud, or to be built there, and the subcontractor had stone works and stone quarries about four miles from St. Cloud, from which the granite was quarried, and about which this controversy arose. The original plaintiff, John G. Emery, was doing business under the name of the Minnesota Granite & Polishing Company, and as such the court below found that on the “21st day of October, 1892,
Before the filing of the lien, the appellants paid Breen in full for the granite columns, and the appellants contend:. First. That it sufficiently appears from the facts in the case that the plaintiff did the polishing of the granite columns wholly upon the faith and credit of Breen, and that in such case Laws 1889, c. 200 (G. S. 1894, §§ 6229-6246), gave no lien. Second. That, to have a lien under said chapter 200, plaintiff must, in any event, show that he intended his work, at the time of performing the same, for some particular building, and that in this respect he failed to do so. Third. That said granite columns being manifestly ordinary personal property, and having been wholly out of the possession of Breen, and wholly in plaintiff’s possession, while the work was being done, and being thereupon redelivered by plaintiff to Breen, plaintiff’s proper, and in fact exclusive, remedy, if he desired to claim a lien, existed under Laws 1889, c. 199 (G. S. 1894, §§ 6247, 6248), relating to liens for work and labor on personal property.
The first section of Laws 1889, c. 200 (G. S. 1894, § 6229), provides, among other things, that “whoever performs labor or furnishes skill, material or machinery for the * * * erection, alteration, repair or removal of any house, mill, manufactory, or other building or ap
Tt will be observed that the language of the statute is very broad in respect to creating and preserving the lien for labor and skill. It does not say that such lien shall exist only when the labor has been done or skill furnished for a certain specified, definite, or particular house or building, but for any house or any building. It is a well-known fact and matter of common knowledge that there are extensive stone quarries in this state, operated upon a vast scale by ■contractors and quarrymen, getting out, cutting, dressing, and preparing stone to be used in the erection of various buildings, many •of them of great value, and some of them taking several years in their completion. These stones are not placed on the market generally, to be sold in the course of trade like wares and general merchandise, such as wagons, sleighs, plows, hardware, dry goods, furniture, and farm machinery, but such stones are generally cut, dressed, and prepared at or near the quarry from which they were
in this case the defendant Hertig claims to have paid the subcontractor the value of the plaintiff’s services in polishing these granite-columns, but we must remember that he was the one who gave to-the subcontractor the power to commit the fault; that is, he contracted with him for these columns, and thus gave him power to-employ skilled workmen to do the work. Now, the familiar legal principle should be applied that, if one of two innocent parties must suffer a loss, it should fall upon the one who gave to a third party the power to commit the fault. Hertig says that he supposed that the Breens did their own polishing, but states no grounds upon which he based this supposition. No one appears to have given him
It is earnestly contended by the appellants that, as it does not appear that the plaintiff furnished the skilled labor on the credit of the building, he cannot recover, and that as he did not know, when he was doing the labor, into what building the granite columns were to be placed, he could not have done the labor on the credit of the building. If these columns were not furnished by the plaintiff upon the “credit of the building,” in the technical sense in which that term is ordinarily used, yet, as the statute creates this credit, and carries it to every laborer performing work and furnishing skill in cases of this kind, we may, not inappropriately, say that in law such labor and skill were furnished' on the credit of the building, and that the laborer may safely rely upon such credit in the performance of his work and furnishing such skill. No formal words need take place between the parties as to the creation of the lien. It is doing the work and furnishing the skill that enables the laborer to say
' It is further contended by the defendants that plaintiff had a lien under Laws 1889, c. 199 (G. S. 1894, §§ 6247, 6248), relating to liens upon personal property. Whether he had or not is immaterial, for chapter 200 of the Laws of that year expressly gives mechanics a lien for their labor and skill when they enter into the erection of buildings upon real estate, and such lien cannot be defeated because
The order denying the motion for a new trial is affirmed,.