53 N.J.L. 270 | N.J. | 1891
The opinion of the court was delivered by
The first question, read in the light of the accompanying case, is whether, when a person makes a written
The first section of the law gives a lien against every building to every person furnishing labor or materials for its construction. The second section enacts “ that when any building-shall be erected in whole or in part- by contract in writing,, such building and the land whereon it stands shall be liable to the contractor alone, for work done or materials furnished in pursuance of such contract; provided, such contract or a duplicate thereof be filed in the office ■ of the clerk of the-county in which such building is situate, before such work done or materials furnished.”
The manifest object of the proviso just recited is to notify all persons, other than the original contractor, who may be about to furnish materials or labor for the construction of the building, that they cannot rely upon a lieu for payment. In order that the filing of the contract may accomplish this purpose of notice, there must be some means by which the parties to be-notified can discover that the instrument has been so filed. No such means is expressly provided by law, and none can be-suggested, by inference from the law, which does not presuppose the ascertainment by those parties of some fact in pais. They must have learned some fact which shall form a clue to-their search for the contract in question. The fact that, in my j u-dgment, is most reasonably suggested by the law, is file-name of the person about to have the building erected, its-owner.
Building contracts do not usually describe the location of the building with such precision as to make that ciicumstancea means of identification; nor need they specify the character of the building so as thereby to denote its identity, for that may be shown solely by the specifications, the filing of which is not always requisite (Budd v. Lucky, 4 Dutcher 484); nor-will the name of the contractor alone point out .ordinarily the-.
This construction of the statute has a further recommendation, in that under it the contract filed will indicate to persons, whose claims to a lien are barred, the party upon whom, in proper cases, they may serve notice, under the third section of the law, for the retention of money due them for work or materials.
We therefore advise the Circuit Court that the filing of the contract made by Mrs. Earl, in the name of her agent, did not protect her building from liens under the Mechanics’ Lien law.
The second question certified is, in effect, whether, when a person has furnished materials to a builder under circumstances which do not entitle him to a lien, because the building con
We do not see how such abandonment can give him that right. The lien is merely statutory, and the statute provides for no lien except such as arises by the furnishing of labor or materials. If the right to a lien does not come into existence when the materials or labor is completely furnished, it never does. If a person has done his work or. sold and delivered his property without any expectation of having a lien therefor, the subsequent conduct of other parties constitutes no reason for securing him a lien. Whether their conduct shall be allowed to deprive him of other claims, on which he may have relied under other provisions of the law, is a question not now before us.
With regard to the third question, we think the Circuit Court was in error.
The filing of a contract precludes liens only “ for work done and materials furnished in pursuance of such contract.” If the owner of the building chooses to abrogate the whole or part of the contract filed and make another instead, or to enter into a further contract requiring additional work or materials, he places himself outside of the protection of the statute to the extent of the changes made. Many building contracts authorize the owner, without consent of the builder, to require alterations and additions during the progress of the work. Labor and materials necessary to meet such changes are furnished in pursuance of the contract, and, if the contract were duly filed, no lien could be obtained therefor except by the original contractor’. Rut if the work or materials be not furnished in pursuance of the contract filed, the exemption of the statute will not apply.