Smallhouse v. Kentucky & M. G. & S. M. Co.

2 Mont. 443 | Mont. | 1876

Wade, C. J.

This is an action to foreclose .a mechanic’s lien. The defendant, “ The Kentucky and Montana Cold and Silver Mining Company,” is a corporation created under and' by virtue of the laws of the State of Kentucky, doing business in the Territory, and having an office and place of business in the county of Madison. This defendant is in default, having made no appearance in the case. The defendant Elling appeared and filed a demurrer to the complaint, which was sustained, and thereupon .judg- • ment was rendered in his favor.

The plaintiff claims a lien upon a certain quartz mill, together with the engine, boiler, belting and other machinery belonging to and used in working the mill, also upon four dwelling-houses situate in the immediate vicinity of the mill, together with the land on which the mill and buildings stand, also upon Discovery claim, and claims numbered one, two, three, four and five, northeast from Discovery claim, and claims numbered one, two, three, four and five, south-west from Discovery claim, on the Kising Sun quartz lode, together with the privileges and appurtenances thereto belonging.

To bring himself within the statute giving a lien to mechanics, builders, lumbermen, artisans, workmen and laborers who shall perform work and labor upon any building, erection, mining claim, quartz lode, etc., the plaintiff alleges that on the 28th day of December’, 1874, the aforesaid corporation hired the plaintiff as its agent, manager and superintendent to perform labor in and about the building, erection and completion of the mill and houses mentioned, and also in working the claims named on the quartz lode, at a salary of $250 per month.

Does this averment bring the plaintiff within the spirit and meaning of the mechanics’ lien law ?

The purpose of the legislature in enacting this statute undoubtedly was to secure to the persons therein named compensation for their labor upon the erections therein contemplated, and within the scope of the statute. Its provisions should be liberally construed. It was designed for the protection of workmen who, by their labor or materials furnished, have called property into being or added to its value, to the end that the property itself should be held liable for the labor and materials that produced it. But it is not every one who contributes to the erection of a building or structure that is entitled to a lien thereon. If the contribution was indirect, as if A should loan money to B for the purpose of enabling him to erect a building, and he should with the money thus loaned employ workmen, purchase materials and construct a building, A could not hold a mechanic’s lien on the building for the money so loaned. In order to have the lien attach the labor or materials must have been expended on the building itself, and not upon something else that produced it as a result.

From the nature of the plaintiff’s employment, as averred by himself, it does not appear that he was an architect or laborer, or that he labored directly in the construction of the buildings, etc., but rather that he was employed by the corporation at a fixed salary to manage and superintend its affairs at the place named. Undoubtedly he had the general oversight of the business of the company, of the workmen employed to labor upon the buildings, etc., and probably kept an account of their time, saw that they performed good service and earned tbeir wages, and at stated times paid them tbeir money, for all of wbicb be rendered an account to tbe company. His services were useful and necessary, but they contributed only'in an indirect manner to tbe construction and erection of tbe buildings. He stood very much in tbe situation ' of an owner directing and managing works of bis own. He was tbe representative of tbe corporation, and to tbe laborers under bim be was tbe corporation at tbe place where tbe labor was performed. Tbis was not tbe kind of service that entitles one to a mechanic’s ben. Tbis view of tbe case is in harmony with tbe decisions of tbe supreme court of tbe State of Missouri, from whence we obtained our mechanics’ lien law. In tbe case of Blakey v. Blakey, 27 Mo. 39, tbe plaintiff brought an action to enforce a mechanic’s lien for work and labor done and materials furnished in building a bouse for defendant. His account was as follows: “ To 114 days’ services of self in working and superintending building from May 1 up to December 23,1856, at $3 per day, $342.” In deciding tbis case tbe court says: “ Tbe law gives the mechanic, builder, artisan, workman, laborer or other person who may do or perform any work upon, or furnish materials for any budding, a lien on tbe same to secure the payment of tbe work done or materials furnished, but it has no such elastic power as is claimed for it in tbis case, and it cannot be stretched to cover, besides tbe value of tbe work done and materials furnished, a claim for services performed by tbe builder for himself in superintending bis own workmen.”

This superintendent stands in place of tbe corporation, and to give bim a lien for the kind of labor be performed might defeat tbe liens of tbe workmen and material men who actually constructed the building, and would be like giving a ben to tbe corporation itself.

This case is not at ab analogous to that of Alvord v. Hendrie, ante, 115, decided by tbis court. In that case there bad been a f ub and complete settlement between tbe parties, and tbe amount for which tbe plaintiff should have a ben upon the property for bis labor thereon had been agreed on and determined. .

An agent employed to disburse money and pay off hands in tbe budding of a bouse has no ben for bis services,- as tbe statute was designed to protect the interest of a different class of persons from those agents employed to disburse money. Such services do not come within the spirit or letter of the act. Edgar v. Salisbury, 17 Mo. 271; Phillips on Liens, §§ 156, 157.

There is another question, not referred to in the briefs, worthy of great consideration, as to the. validity of a joint lien upon separate and distinct parcels of property. See Phillips on Liens, § 376; Steigleman v. McBride, 17 Ill. 300; James v. Hambleton, 42 id. 308.

The judgment below is affirmed.

Judgment affirmed.

Blaee, L, did not sit in this case, being disqualified.