33 W. Va. 63 | W. Va. | 1889
A suit in equity was brought and bill filed at July rules, 1887, by E. E. McGugin in the Circuit Court of Jackson county against the Ohio Eiver Railroad Company, a corporation formed and existing under the laws of West Virginia, the Ohio Valley Construction Company, a corporation formed
The plaintiff in his bill alleged, that said Crick & Coulston were the contractors with said Ohio Valley Construction Company for the building of the freight-depot of said railroad, erected and built upon said lot for the uses and purposes of said railroad ; that said Crick & Coulston by virtue of their contract with said Ohio Valley Construction Company and in conformity with the terms of the contract between said Ohio Valley Construction Company and said Ohio River Railroad Company, did build and erect said freight-depot on said lot of land owned and belonging to said railroad company as aforesaid; that ho was a mechanic and artisan and as such performed work and labor in the erection and construction of said depot and furnished materials therefor by virtue and in pursuance of an agreement made by him with said Crick & Coulston, and in conformity with the terms of said contract between the Ohio Valley Construction Company and said Crick & Coulston, and in conformity with the terms of said contract; that he furnished eighty seven squares of iron roofing at $4.16, amounting to $361.92, 155 feet comb cap for roof, $15.50, and nails and labor putting on comb, $2.75, — aggregating $380.17, upon which there are the following credits, to wit: Cash to F. Ii. Green, $100.00, cash to É. R,. McGugin, $10.00, — aggregating $110.00 ; leaving a balance,February 8, 1887, of'$270,17.
.The*plaintiff’ further alleged, that he ceased to labor on and furnish material for said depot on the 15th day of January, 1887, and on the 9th day of February, 1887, he filed
The defendant, the Ohio River Railroad Company, demurred to plaintiff’s bill, as also did the defendants, Crick & Coulston, which demurrers were disallowed and overruled by the court below, and thereupon the said Ohio River Railroad Company tendered its separate answer, as also did said Crick & Coulston, which answers were ordered to he filed, and the plaintiff- replied generally thereto.
A considerable number of depositions were taken in the cause, and on the 12th day of March, 1888, a decree was rendered therein, finding that the plaintiff was entitled to the relief prayed for, ascertaining the amount due from the defendants Crick & Coulston to be §287.90, and holding that said sum is a valid and subsisting lien on the said six acres
From this 'decree the defendant the Ohio River Railroad' Company appealed to this Court.
The first error assigned by the appellant is, that the court erred in disallowing and overruling its demurrer to the plaintiff’s bill. The lien claimed and asserted by the plaintiff’s bill, if it exists at all, derives its vitality and force from a strict compliance with the statute, under which the plaintiff sought to create it. It is true, that this Court held in the case of Mayes v. Ruffners, 8. W. Va. 384, that “a mechanic’s lien is of statutory creation and can be maintained only by a substantial observance of and compliance with the requirements of the statute;” yet in that case the Court held, that, where the statute required, that the account filed with the recorder must be subscribed by the party seeking to obtain the lien, the statute was not complied with, if said party only subscribed the affidavit-appended to said account; and also held, that the name of the owner of the property should be positively designated, if known. At that time the statute required the account to be subscribed by the party seeking the lien," and upon demurrer the failure to so subscribe the account was regarded so material as to vitiate the plaintiff’s lien, and from the rulings of this Court in that case it would seem, that by a “substantial observance of and compliance with the requirements of the statute it was meant and intended, that everything required by the statute to be done by the party seeking the lien should be complied with,- before the lien would come into existence, and upon a demurrer to a bill asserting such a lien the allegations therein contained must show affirmatively, that the plaintiff has done all, that the statute requires to create the lien, or the demurrer should be sustained.
Now under section 5 of chapter 75 of the Code of West Virginia, under which the plaintiff claims, he acquired the lien asserted in his bill, we find, that a person, in order that ho may have the benefit of the lien therein provided for, must have been employed to do the work or furnish' the material by another, who had contracted with the owner to erect or construct the house or building or any part thereof. The plaintiff however in his bill alleges, that the Ohio River Railroad Company is the owner Of the lot, on -which the freight-depot was erected; that the Ohio Valley Construction Company contracted -with said owner to erect and construct said depot; that Crick & Coulston contracted with the Ohio Valley Construction Company for the construction of said freight depot on said lot for the uses and purposes of said railroad; and that the plaintiff being a mechanic and artisan performed work and labor in the erection and construction of said depot and furnished materials therefor by virtue and in pursuance of an agreement made by him with said Crick & Coulston in conformity with the terms of the contract between said Ohio Valley Construction Company and Crick & Coulston and in conformity with the terms of said contract between said Ohio Valley Construction Company and said Ohio River Railroad Company. This statement of the plaintiff’s case however does not show, that he contracted with another, who had contracted with the owner, but it does show, that he contracted with Crick & Coulston, who do not appear from any allegation or statement in his
Phillips on Mechanics’ Liens,p. 75, §49, says : “Although the sub-contractor and material-man have been secured in many of the states either a lien on the property or a right of action against the owner to recover any balance due the contractor on his contract, yet those privileges have been more rarely extended to sub-contractors in the second and third degree. The plainest expressions of law must be adduced to entitle them to the remedy. Kirby v. McGarry, 16 Wis. 68. Statutes which are opposed to common right, and confer special privileges upon one class of community not enjoyed by others, should receive a strict construction, and parties claiming its benefits must bring themselves clearly within its provisions. Bridge Co. v. Railroad Co., 72 Ill. 506. * *
Under the Illinois statute it is provided : ‘‘Every person, who shall hereafter as sub-contractor or material-man or laborer furnish to any contractor with any such railroad corporation any fuel, ties, materials, supplies or any other article or thing, or who shall do and perform any work or labor for such contractor,” etc., in conformity with the terms of his contract with such railroad company, shall have a lien on the property of the railroad company. And in the case of Railroad Co. v. Watson, 85 Ill. 531, the court in construing said statute holds, that the lien on the railroad does not extend beyond a sub-contractor; and in the case of Newhall v. Kastens, 70 Ill. 156, the Supreme Court of that state holds : “The mechanic or workman performing labor, or party furnishing materials, for a sub-contractor, is not entitled under the statute to any lien; the lien given does not extend further than to a sub-contractor.” In the ease of Rothyerber v. Dupuy, 64 Ill. 453, said court holds: “The act of 1869, which gives a sub-contractor performing labor or furnishing materials for the erection of a building a lien thereon for the value of such labor, will not be extended by construction so as to give its benefits to a sub-contractor of a sub-contractor.”
Under a statute, which requires the contract to be made with the owner thereof or his agent or any person, who, in pursuance of an agreement with any such contractor, shall in conformity with the terms of such contract perform any
In the case of McKnight v. Washington, 8 W. Va. 666, sections-2. and 5, c. 75, Code of West Virginia of 1868, have been considered by this Court; and in that case it was held, as hereinbefore stated, that no lien was acquired by giving notice in writing to the owner within thirty days after the work was done or material furnished, where the owner had paid the contractor in accordance with his contract. Under the statute, as it .then read, and before the provision was inserted requiring the sub-contractor to give notice before performing the work or furnishing the materials, if he wished to claim beyond the amount due from the owner to the contractor, this Court in said last-named case (page 671,) says“I think, under a proper construction of the said second and fifth sections of said chapter 75 of the Code, the material-man is bound to take notice of the contract between the ‘owner’ and the ‘contractor,’ not only as to the materials, but as to the price to be paid by the owner for the construction of the house or building, and the time or times the same is to be paid by the owner.”
It is an-elementary'principle of equity, that every fact
Now, the plaintiff in this case not having shown by the allegations in his bill contained, that he was employed to work or furnish materials for any house or building or any part thereof by another, who had contracted with the owner thereof to construct or erect the same or any part thereof, he has not brought his case within the express provisions of the statute requisite to constitute a mechanic’s lien in his favor; but on the contrary it appearing by allegations of his bill, that he was a sub-contractor in the second degree having-no privity of contract with the owner of the property sought to be subjected or its agents, the court below committed an error in not dismissing the plaintiff's bill on demurrer.
Eor the reasons hereinbefore indicated the decree complained of must be reversed, and the plaintiff’s bill dismissed, with costs to the appellant.
ReveRsed. Dismissed.