Hart & Schlessenger Corp. v. Mullen

4 Colo. 512 | Colo. | 1878

Thatcher, C. J.

By tbe petition of tbe plaintiff in error, complainant below, it appears that it claims a lien for lumber furnished by it to and used by ISTeaman in the construction of a building situated on a certain lot owned by ISTeaman, in Central City; that tbe lumber, in accordance with a contract between tbe plaintiff in error and ISTeaman, was delivered to Mm in the month of April, A. D. 1875; that thereafter, and on the 2d day of May, A. D. 1876, before the building was finished, it filed its notice of intention to claim a lien upon the building and premises upon which it was situated, in pursuance of section two of the Mechanics’ Lien Act of February 9,1872, Session Laws 1872, p. 147; that Mullen and Sartori claim to have some interest in the premises for work and labor performed on said building, and they are therefore made parties defendant.

A joint and several demurrer was interposed to the petition, which, as to Mullen and Sartori, was sustained by the court. The only point relied on by defendants in error, in their argument, is that the statement of the lien claimed was not filed within the statutory period. Section one of the act provides that all artisans, mechanics, and others, who shall perform work or labor, or furnish materials * * * for the construction or repairing of any building, shall have and may claim a lien upon such building for the amount and value of the work and labor so performed or materials furnished. Section two provides that persons claiming a lien, as provided in section one, shall file in the clerk and recorder’s office, within forty days after such building or superstructure, work of construction, or any repairs shall have been completed, a statement of such lien. Defendants in error contend that the statement must be filed, under this section, within forty days after the last materials were furnished by lien claimant. To determine the time within wMch a sub-contractor must file his Ken, reference must doubtless be had to the time when the last labor was performed or the last materials furnished by him. Such is the plain requirement of the last provision of section two. But a different rule, as will be seen from the portion of section two above quoted, appKes to him who contracts for the delivery of materials directly with the owner of the building. In such case the contractor is only bound to file his lien claim within forty days after the completion of the building. Until that time has elapsed he cannot be said to be in default. Phillips on Mechanics’ Liens, § 880, p. 465. He may file it at an earlier day if he so elects, and within six months thereafter in either event, whether the lien be filed prior or subsequent to the completion of the building, he must commence suit to enforce it. § 8.

As the lien claim was filed within the prescribed time under the statute, as we construe it, the decree dismissing the bill as to Mullen and Sartori was erroneous. The decree against Neaman for the payment of money in the absence of a lien, is not warranted by the Lien Act. Barnard, Adm'r, v. McKenzie (ante, p. 251).

Decree reversed.