Kern v. Guiry Bros. Wall Paper Co.

60 Colo. 286 | Colo. | 1915

Gabbert, C. J.,

delivered the opinion of the court.

Counsel for plaintiff in error appear to concede that a lien for material furnished might properly be allowed, but contend that it was error to allow a lien for labor furnished by the company. The act provides that persons performing labor upon a building or furnishing materials therefor, shall have a lien for the value of such labor and materials, and that every person given a lien, whose contract is with the owner, is a principal contractor, and all others sub-contractors. This means, so far as any question is presented, that those furnishing materials, or performing labor for an owner, or a principal contractor may have a lien, but the act does not provide, nor does it contemplate, that one contracting with the principal contractor to furnish him and pay for labor only, can enforce a lien for the money thus expended. The Mechanics’ Lien Act is equitable in its nature and should be liberally construed, but cannot by construction be extended to cases not within its provisions. Its purpose is to protect persons performing labor, but it does not extend to those who merely furnish labor for the benefit of the contractor. Where one contracts with the principal contractor to do some particular part of the work, and furnish material and labor for that purpose, he may be entitled to a lien for the value of both. That is what is held in the authorities cited by counsel for the Wall Paper Company, and we do not rule to the contrary. These authorities, from the facts, are in no sense applicable. The Wall Paper Company furnished material, and for its value is entitled to a lien, but as the statute nowhere provides, either in express terms or by necessary implication, that one simply furnishing labor for a contractor is entitled to a lien for the value of such labor, it follows that it was error under the facts of this case to allow the company a lien for the value of the labor which it furnished Blume.

The next question relates to interest. Interest is recoverable only in the cases enumerated in the statute. The lien act is silent on the subject. Kern is not personally liable for the materials purchased by Blume, consequently is not personally obligated to pay the Wall Paper Company interest on its account. If, however, the company is entitled to interest on the Blume account as against him, then the amount of such interest may be included in its judgment, provided the fund which Kern should have retained to satisfy liens for materials is sufficient to pay the account with interest. Interest is recoverable in such circumstances upon the theory that Kern does not pay the Wall Paper Company account out of his own money, but out of a fund which he should have retained. We also add the further proviso that interest should not be allowed where the rights of third parties would be injuriously affected. — Hurd v. Tomkins, 17 Colo. 294, 30 Pac. 247; Stone Post Co. v. Corcoran, 80 N. J. L. 549, 77 Atl. 1031.

The judgment of the County Court is reversed, and the cause remanded for a new trial and for further proceedings in harmony with the views expressed in this opinion.

Judgment reversed and cause remanded.

Hill, J., and Teller, J., concur.