141 F. 32 | 8th Cir. | 1905
after stating the case as above, delivered the opinion of the court.
The principal question presented by this appeal is whether the United States Court of Appeals in the Indian Territory correctly'held that J. B. Pope failed to take the necessary steps to secure and perfect his right, as a subcontractor furnishing building material, to a lien upon and against the building of Campbell & Williams, for the construction of which he furnished such material to the contractor, Ellis, and also upon their lot upon which the building was constructed.
There was no right to a mechanic’s lien at common law, and therefore such right is based wholly upon statutes providing for such liens, to secure which the procedure prescribed by the statute must be followed with reasonable strictness and substantial compliance. Jones on Eiens, §§ 1389, 1390.
The statutes .of Arkansas, in force in the Indian Territory, upon this subject, are contained in Mansfield’s Digest, which provides:
“See. 4402. Every mechanic, builder, artisan, workman, laborer or other person who shall do or perform any work or labor upon or furnish any materials, machinery or fixtures for any building, erection or other improvement upon land, including contractors, subcontractors, material furnishers, mechanics and laborers, under or by virtue of any contract, express or implied, with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this act,. shall have for his work or labor done, or materials, machinery or fixtures furnished, a lien upon' such building, erection or improvement and upon the land belonging to such owner or proprietor on which the same is situated, to secure the payment of such work or labor done, or materials, machinery or fixtures furnished.”
“See. 4403. Every subcontractor wishing to avail himself of the benefits of this act shall give notice to the owner or proprietor, or his agent or trustee, before or at the time he furnishes any of the things aforesaid, or performs any of the labor, of his intention to furnish or perform the same, and the probable value thereof; and, if afterward the things are furnished or labor done, the subcontractor shall settle with the contractor therefor, and having made the settlement in writing, the same, signed by the contractor and certified by him to be just, shall be presented to the owner or proprietor,' or his agent or trustee, and left with him, and within sixty days from the time the things shall have been furnished, or the labor performed, the subcontractor shall file with the clerk of the circuit court of the county in which the building, erection or other improvement is situated a copy of the settlement between him and the contractor, which shall be a lien on the building, erection or other improvement for which the things were furnished, or the labor performed, and shall at the time file a correct description of the property to be charged with the lien, the correctness of all which shall be verified by affidavit.
“Sec. 4404. In case the contractor shall for any reason fail or refuse to make and sign such settlement in writing with the subcontractor when the same is demanded, then the subcontractor shall make a just and true statement of wbrk and labor done or things furnished by him. giving all credits, which he shall present to the owner or proprietor, his agent or trustee, and shall also file a copy of the same, verified by affidavit, with the circuit clerk, as provided in section 4403.”
“Sec. 4421. In case any subcontractor shall not have notified the owner, proprietor, his agent or trustee, before furnishing the things aforesaid, or doing work and labor, as provided for in section 4403, but shall furnish to him the account as provided in said section, or the statement provided for in section 4404, and in all other respects shall comply with the provisions of this act, he shall have the benefit hereof the same as if he had given notice as required herein, to the extent, and only to the extent, that such owner or proprietor can safely, with his engagements and liabilities on account of such building, erection or other improvement, withhold any amount by him owing to his contractor for such subcontractor.”
' The act provided that any such lien should be transferable and assignable. But Pope never complied with the essential provisions of said statute, and therefore never acquired any lien. He did not, in compliance with section 4403, give any notice to the owner before furnishing the material of his intention to furnish the same, and made no settlement in writing with the contractor therefor, nor have any such settlement signed by the contractor and presented to the owner. He never demanded or asked for such settlement of the contractor, who therefore never refused to make, sign, or certify such settlement, and hence said Pope was not entitled to make or furnish to the owner or file with the clerk of the court the statement provided for by section 4404.
It is apparent that the written statement made by Pope about December 1, 1902, of the material furnished by him, which was mailed to the owners, and a verified copy of which was on December 29, 1902, filed with the clerk of the court, did not comply fully with any of the provisions of the statute, and was of itself ineffective to secure or preserve his lien. Even had the proceeding taken by Pope amounted to a substantial compliance with that contemplated by section 4421, it would
In this case the .defendants, admit by their answer that they still have in their hands $147.47, owing by them'to the contractor on the contract, and aver that they have tendered that sum to the plaintiff, and again tender and offer to pay the same into court. The record does not show that it was in fact paid into court, so as to affect the right to costs.
“A tender, when made, is an admission of an amount due equal to the sum tendered, and while a verdict may be rendered for more than the amount tendered, it cannot be rendered for less. And this, too, although the tender be defective, or even be offered in a case where it cannot be legally made or pleaded, and for such reasons be held unavailable to save costs/’ Denver, etc., R. R. Co. v. Harp, 6 Colo. 420, 424, citing many cases. See, also, Eaton v. Wells, 82 N. Y. 576; Noble v. Fagnant, 162 Mass. 275, 38 N. E. 507; 28 Am. & Eng. Encyc. of Daw (2d Ed.) 15.
As the plaintiff claimed no personal indebtedness as owing to it by the defendants Campbell & Williams, but only such liability as arose from plaintiff’s lien upon these defendants’ building and lot, for material furnished to defendants’ contractor Ellis, this tender by defendants of $147.47 as moneys owing by defendants to that contractor, on the contract price for constructing that building, is necessarily an admission by defendants that plaintiff has a valid lien on that building and lot to the extent of the amount so tendered, as their right to pay to the plaintiff such balance of money stated to be owing to Ellis could rest alone on the validity of plaintiff’s lien to at least that amount.
It follows that the part of the decree of the trial court adjudging and establishing the lien of plaintiff upon the building and lot of these defendants was right, but only to the extent of $147.47 and the costs.
Furthermore, it appears by the record that the decree of the trial court was not questioned to that extent in the appeal taken to the United States Court of Appeals in the Indian Territory. The assignments of error on which that appeal was taken are recited in the opinion of the court. The only one bearing on this matter is the folio-wing:
“Second, that the court erre’d in entering any decree against them in excess of $147147 admitted by defendants in their answer to 'be due and unpaid.”
The decree of the United States Court of Appeals in the Indian Territory, except as to costs in that court, is reversed, with costs, and the cause remanded to the United States Court for the Southern District of the Indian Territory at Chickasha, with directions that the decree be modified so that the amount recovered by the plaintiffs shall be a lien upon the building and lot of the defendants described in the decree to the extent only of $147.47, and for further proceedings not inconsistent with this opinion.
As the outcome of these defendants’ appeal to the United States Court of Appeals in the Indian Territory has been a large reduction of the amount for which a lien upon their property had been adjudged, it is considered that they should, in the final adjustment, be allowed the costs of that court.
