152 Ky. 164 | Ky. Ct. App. | 1913
Response to Petition eor, Rehearing by
The opinion in this ease will be found in 150 Ky., 557.
In its petition for rehearing, counsel for appellee raise ia question not presented in the loiwer court or in this court, on appeal. They now insist that the statute under consideration (section 2492, Kentucky Statutes) gives a lien for labor, material, supplies, and teams, only to those who have contracts with the owners and to those who make contracts with the immediate contractor; and that no one, who- works for, or furnishes supplies, material, and- teams to, a contractor to whom a sub-contractor may sublet, has a lien. In support of this construction, it is insisted that no lien exists in favor of any one, not fairly embraced in tbe language of the statute; and that, when this test is applied to the act, it is apparent that appellant has no lien.
. The question is a new one in this jurisdiction, not having been heretofore raised. The particular language of the statute, in question, is: “All .persons who perform or furnish labor, -material, -supplies or teams, * * * * by contract, express -or implied, with the owner or owners thereof, or by subcontract thereunder, etc.” The object of construction is to arrive at the intent. Now, did the legislature, as contended by appellee, intend, in the use of this language, to- protect the property of the railroad from lien against claims asserted by any one, save the contractor and snch of the subcontractors as contracted with the principal contractor; or, was the language used intended to put the property of the railroad in lien for labor and material that, by contract, express or implied, were furnished to any subcontractor, in building the road, no matter how many
Webster, in his new International Dictionary, defines “sub-contract” to be “a contract under, or subordinate to, a previous contract.” And “sub-contractor” to be “one who contracts with a contractor to perform part or all of the latter’s contract.” The same author defines * ‘ thereunder ’ ’ thus: ‘ ‘ Under this or that. ’ ’ Under these definitions, any contract that is under and a part of the original contract is a “sub-contract,” within the meaning of the term as used in the statute; and, as the statute makes no distinction between contractors in the first degree, and those remotely connected with the original contractor, we must presume that the legislature intended to treat them-all alike. Hence, the language “sub-contract 'thereunder,” as used in the statute, covers all contracts, near or remote, in which the contractor undertakes to carry out and perform the work, according to the terms of the principal contract.
It is not uncommon, in executing big contracts, for the work to be many times sublet and re-sublet; yet the undertaking of all the contractors, no matter how many degrees removed from the owner, but make up the original contract. So, a sub-contract, in the second or third degree removed, is in fact a contract under the original contract, as much so as is the contract in the first degree, that is, a contract with the original contractor. This is evidently what the legislature meant, and it is the only construction that gives force, efficacy and life to the statute. We are aware, in taking this position, that the learned judge of the United States Circuit Court for the District of Kentucky, in Central Trust Co. v. R. N. I. & B. R. Co., et al, 54 Fed., 723, adopted the construction contended for by appellee; and that this opinion was approved by the United States Circuit Court of Appeals in the case of R. & I. Construction Co. v. R. N. I. & B. R. Co., 68 Fed., 105, Judge Lurton writing the opinion; and we would hesitate to adopt a different
The principle announced by this, court in Hightower v. Baily, 108 Ky., 198, cited and relied upon by counsel
In the case at bar, the statute gives to appellant a lien, because he brings himself clearly within its provisions. Petition for rehearing overruled.