should be delivered upon the site of a building. If the owner of the building for which they are intended direct them to be delivered elsewhere, the lien will attach." But it is essential that the materials must have been furnished to be used, and have been actually used, upon the structure on which the lien is claimed." Whether there can be a lien for materials which, although furnished in good faith for use in a particular building, are in fact not incorporated into the building, but are used for some other purpose, is a vexed question with the courts, and there cannot be said to be any general rule on the subject." The preponderance of opinion is that a lien may exist though the materials are not actually used in the building. 12. The material man cannot charge the building, by his contract with a contractor, for an indefinitely large quantity of material. It is his duty to make necessary inquiries as to the size, materials, and nature of the intended erection, and furnish only such quantity and quality of materials as a careful and prudent man would say was necessary. Beyond this boundary, the lien of the material man cannot go. The reason is that he seeks to charge the building, and not the personal responsibility of the owner." The principle is identical with that which sometimes allows strangers to supply necessaries to a family on the credit of the head of the family; the allowance is not measured by the mere will of the supplier, nor by the financial ability of the head of the family, but by the necessity of the case, regard being had to the style in which the family is accustomed to live, of which the supplier must inform himself."" Where, however, the materials are furnished by a direct contract with the owner himself, the rule is different, for every owner may pledge his property for any kind of materials." The work and materials must be for buildings which are legal. If the erection of a structure be prohibited by law, no lien can arise for materials furnished in its construction."" The building need not be a new structure distinct or independent of older buildings. Additions to old buildings, such as kitchens or back buildings, are erections within the meaning of the mechanics' lien laws, and work done or materials furnished thereto will confer the right to a lien." Nor need the building be a dwelling house or habitation. A railroad station, a chimney stack to a manufactory, the various structures which go to make up an oil refinery, are all buildings within the mechanics' lien laws. In general, what constitutes a building, and what does not, is a question of law for the courts from a consideration of the particular statute under investigation." PRIORITY OF THE LIEN 13. In accordance with the general principle governing all liens, a mechanic's lien will not be affected or divested by other liens subsequently accruing. The lien, when once it has attached, cannot be disturbed by any act of the debtor or his creditors." The converse of the proposition is also true, namely, that prior legal liens will maintain their priority over subsequent mechanics' liens. The entire subject is now largely regulated by statute. To determine the priority of a mechanic's lien, it is only necessary to ascertain the statutory period for the commencement of the lien, and then to determine what is the condition of the property at that time with respect to encumbrances. Where the lien begins with the commencement of the building, all that a workman has to do is to search the records for liens existing before the commencement of the house, and an encumbrance recorded thereafter will not affect his own lien.”1 No priority exists between mechanics themselves, standing 876 Ohio 444 (1856). 88 28 Pa. 322 (1857). 89 Phill. Mech. Liens, Sec. 171. 90 126 Mass. 274 (1879). in the same class. This principle has been almost universally adopted by the various states, even in the absence of express statutory provision. If, however, the mechanics do not stand in the same class, the rule does not apply." A contractor who has employed mechanics and material men cannot, even though he has filed a lien, share pro rata with them the proceeds of the sale of the building. The reason is that he is personally responsible to them on their contract of employment, and cannot be permitted to share in the distribution until they have been paid in full."* WHO MAY CLAIM THE LIEN 14. In General. In the absence of specific statutory designation of the classes of workmen entitled to its provisions, the mechanics' lien law will include all persons bestowing their labor or furnishing their materials to the building, irrespective of their character as mechanics. The privilege is conferred more with reference to the character of work done than to the persons who perform it. The statutes of each state should be consulted, since the legislature has the exclusive right to determine who shall be entitled to the lien."* 15. Principal Contractors, Subcontractors, Material Men. The principal contractor is, in nearly every jurisdiction, entitled to the lien. With respect to the subcontractor and the material man, two doctrines, or systems, prevail. In some states, the subcontractor and the material man are entitled to a direct lien on the buildings for the full amount of their claims, irrespective of the state of the account between the principal contractor and the owner. But in the majority of the states, no direct lien on the building is allowed; the parties may give written notice to the owner of their unpaid claims, and thereafter the latter will be required to withhold from the principal contractor such funds 92 Phill. Mech. Liens, Sec. 251. 931 Phila. 513 (1854). 94 Phill. Mech. Liens, Sec. 35. as were in his hands at the time of the giving of such notice, the subcontractor acquiring, in some states, a lien against the owner to the amount of the funds in his hands due the principal contractor; and, in other states, having a right of action against the owner if, after such notice, he pay the money over." In either case, whether the lien be given directly in the first place, or whether it only accrue after notice was given the owner, the rule appears to be universal that the rights of the subcontractor are dependent upon the terms of the original contract existing between the principal contractor and the owner." It is the duty of the subcontractor to investigate the principal contract, and to see whether it be such as to justify him in becoming a subcontractor under it. If it contain a prohibition against the right of a subcontractor to file a lien, the subcontractor will be bound by this stipulation, and he cannot file a lien." By statute, in some states, the principal contract is required to be entered of record, so that subcontractors may have the opportunity of inspecting it in advance, and thus inform themselves whether it would be safe for them to perform work or furnish materials. In those states where the subcontractor only acquires a lien after notice given to the owner of his unpaid claim, his right to payment depends upon the terms of the principal contract. If the principal contractor were not to be paid until a given period after the completion of the work, the subcontractor cannot enforce his lien until the period specified has elapsed." If the principal contractor failed to perform his contract, or if he have performed it in part only, and there be no money due him on the contract, the subcontractor has no lien. Until the owner has been notified, he is at perfect liberty to make payments to the principal contractor; and, if the notice be not given until all the payments have been made, the subcontractor has no lien.1o1 98 100 101 In some states, it is provided by statute that the subcontractor shall have a specified period within which to present 95 Phill. Mech. Liens, Sec. 57. 961 Phila. 187 (1854). 97 134 Pa. 277 (1890). 98 88 Pa. 460 (1879). 99 18 Fla. 270 (1881). 100 54 Cal. 335 (1880). 101 38 N. J. Law 125 (1875). his notice to the owner. Where this is the case, the owner cannot, except at his peril, pay the money to the contractor until the expiration of this statutory period.1°* 16. Ordinary Workmen. - What has been said of subcontractors applies, in a few states, to ordinary workmen, but, in most of the states, the day laborer has no such right to a lien, though the tendency of recent legislation is, perhaps, to include him as well.103 WHO MAY CONFER THE LIEN THE OWNER 106 105 17. Mechanics' lien laws do not authorize a lien against the property of an owner who does not, by himself or his agent, enter into a contract for the doing of the work.10* When, however, the owner of land or his agent has entered into a contract for the doing of the work, he cannot prevent the attaching of the lien of such persons upon whom the statute expressly confers the right to a mechanic's lien." The owner may, of course, confer the lien, since he has an unqualified right to contract concerning his property. The term owner means every person who has an estate or interest in the building.' A question has been raised by the courts whether by owner be intended the person who was owner at the time the contract for the improvements was made, or whether a subsequently acquired title will suffice to authorize the lien. The question largely depends upon the wording of the statute in each particular jurisdiction. The statutes of some states expressly require that the contract shall be one which was made by the person who was the owner at the time of the execution of the contract. It is well settled that the holder of the equitable title may create the lien as well as the legal owner of the property.' 102 67 Ill. 463 (1873). 103 Phill. Mech. Liens, Sec. 36. 104 11 Abb. Pr. (N. Y.) 118 (1860). 107 105 105 Mass. 345 (1870). |