10 N.M. 506 | N.M. | 1900
This was a suit brought to foreclose a mechanic’s lien by appellant upon a building known as the New Opera House in the City of Albuquerque. All of defendants appeared, two did not plead, two answered and two demurred which demurrers were sustained and the bill dismissed. One of the demurrers was general and to the point that the complaint failed to state facts sufficient to constitute a cause of action. The other demurrer was special and raised the same point and the point that a claim by an architect for services in drawing plans and specifications, for which, it is alleged, there is no right to a lien, is joined with a claim for superintendence of the construction of the building and that thereby the whole lien is rendered void.
The 4th paragraph of the claim of lien is as follows: “That the labor performed upon said building by this complainant was done under a contract with said Frank P. McClure entered into about the 14th day of November, 1898, by which said Frank P. McClure employed this claimant as architect of said building and superintendent of the construction thereof; that no price was agreed upon by them as to the compensation of said claimant; that this claimant acted as architect of said building preparing the plans and drawings and specifications therefor and acted as superintendent of the construction thereof, and in all things complied with his said contract; that said building and his said contract were completed on August 1, 1899; that claimant’s services were reasonably worth the sum of fifteen hundred dollars.”
We are cited to numerous authorities by appellees, but with the exception of a few which will be noticed hereafter, they all go to the proposition only that an architect who furnishes plans and specifications but who does not superintend the construction of the building in accordance therewith is not entitled to a' lien. Appellees cite Raeder v. Bensbury, 6 Mo. App. 445; Foushee v. Griggsby, 12 Bush, (Ky.) 75; Thompson v. Baxter, 92 Tenn. 305; 21 S. W. 688, decided by a divided court; Mitchell v. Packard, 168, Mass. 465; Ames v. Dyer, 41 Me. 397; all of which seem to support appellees’ contention that there is no lien for either plans or superintendence, except Mitchell v. Packard, supra, which declares that in Massachusetts there is a lien for superintendence but not for plans. These cases are contrary to what we consider the better doctrine and weight of authority, and we must decline to follow them. But counsel for appellees relies principally upon the case of Boyle v. Mountain Key Mining Co. et al., 9 N. M. 237, 50 Pac. 347. The result reached in that case was unquestionably correct, but with some of the reasoning employed therein, we do not agree as being of universal applicability to cases of this kind. We do not think that bodily toil in the form of manual labor upon the thing being constructed is in all cases necessary to entitle to a lien. And we do not understand the Supreme Court of the United States, in Mining Company v. Cullins, 104 U. S. 176, to be committed to that doctrine. In that cas.e the lien claimant did some manual labor and the court- found it unnecessary to go farther than the facts of that case required. But the court cited some of the cases cited by appellant in this case without disapproval and stated that it was not required in that case to go as far as the cases cited would warrant.
But the case of Boyle v. Mountain Key Mining Co., supra, is clearly distinguishable from the case at bar. In that case the claimant was the general manager and superintendent of a mining company, attended to all its business of every kind, including mines, mill, boarding house, ore hauling, etc., and had nothing to do with the actual mining in the mine except in the most general and indirect ■manner. He had foremen under his directions who did the actual mining upon the mine by means of men under their immediate control. He was thus removed from all direct contact with the actual mining in the mine and this court held, very properly, that he was not within the terms of the statute.
In the case at bar, no testimony has been taken and nothing appears as to what claimant actually did further than his claim that he superintended the construction of the building. This being the case, we assume that he performed the duties usually incident to such service. Hence we assume that he explained his plans and specifications to the mechanics who were doing the work; personally inspected every portion of the material which went into the building from foundation to roof; saw that all work was performed in accordance with the specifications and plans; and thus came in actual, direct, personal contact with every portion of the work from its commencement to its conclusion. Under such circumstances we think he performed labor upon the building as much as the man who carried the hod, or laid the bricks, or the man who decorated the ceiling.
For the reasons stated the judgment of the lower court will be reversed, and the cause remanded with instructions to set aside the judgment dismissing the complaint, overrule the demurrers and proceed in accordance herewith, and it is so ordered.
