Geiger & Co. v. Hussey , 63 Ala. 338 ( 1879 )

BKICKELL, 0. J.

The only question of the case is, whether a lumber merchant, furnishing materials to the owner or proprietor of a vacant city lot, for the erection of buildings thereon, has a lien on the buildings and lot for the debt owing him. This depends on the true construction of chapter 6, title 2, part 3, of the Code of 1876, which is devoted to the “liens of mechanics, employees, and material-men, for any building, erection, or improvement upon land, or for repairing the same.”

It is first declared; “Every mechanic, or other person, who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler, or machinery, for any building, erection, or improvement upon land, or for repairing the same, under and by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or sub-contractor, upon complying with the provisions of this chapter, shall have for his work or labor done, or materials, fixtures, engine, boiler, or machinery furnished, a lien, to the extent, and in the manner by this chapter provided, upon such building, erection, or improvements, and upon the lands belonging to such owner or proprietor, on which the same is situated; . . . . and upon any balance due by the owner or proprietor to the contractor, to secure the payment for such work or labor done, or materials, fixtures, engine, boiler, or machinery, furnished as aforesaid,” &o.

The next section declares the extent of the lien, as follows: “The entire land, to the extent aforesaid, upon which any such building, erection, or other improvement is situated, including as well that part of the land which is not covered with such building, erection, or other improvement is situated, '. . . . shall be subject to all liens created by this chapter in favor of the contractor, .... and • also in favor of all the employees of such contractor, and persons furnishing materials, to the amount of any unpaid balance due the contractor, by the owner or proprietor.”

A succeeding section requires, that an original contractor, claiming the lien, shall, within six months, and every journeyman and day laborer within thirty days, and every other person, seeking to obtain the benefits of the statute, within four months after the indebtedness has accrued, shall file a verified statement with the judge of probate, &c. “If the claim so filed belongs to a laborer, sub-contractor, or material-man, then the lien shall be only to the extent of the unpaid balance in the hands of the owner or proprietor, at and after the notice of the same is given,” &c. We have referred to all the provisions of the statutes which have any bearing on the question presented.

We may concede the proposition of the appellee, that whoever claims the benefits of the statute, must bring himself within its provisions — must show affirmatively that he is of the class of persons, and has a claim of the kind the statute intends to secure. The courts can neither extend nor narrow the privileges of the statute. It must be so construed as to embrace all cases (and no others), which are within the legitimate meaning of its terms. It is a just inference from Welch v. Porter, at the present term, that a material-man, furnishing materials, is within the provisions of the statute, and has a lien on the lot or buildings. The statute was intended to confer, and seems to us in unqualified terms to confer, a lien on three classes of jpersons — the mechanic, his employees, and the material-men. If the material-man supplies the materials under a contract, not with the owner or proprietor, but with the mechanic contracting with him, the lien extends only to the balance which may be due from him to, the contractor. When the materials are supplied under a contract directly with the owner or proprietor, there is a lien (the requisitions of the statute being observed), not on the balance due the contractor, but upon the land, buildings, or other improvements, &e. There is no lien, in that case, upon the balance due the contractor, because there is no debt due from him. But for the debt due from the owner or proprietor, for the materials, fixtures, &c., which have passed into and contributed to the improvement of his land, enhancing its value, equally with the labor of the mechanic or his employees, the statute gives a lien. If the first section of the statute to which we have referred stood alone, this would not be questioned. The expressions in subsequent sections may not be so broad. We must look to the whole statute; and if, from the broader and larger expressions, we can collect the legislative intention, we must give effect to these expressions, notwithstanding other phrases, of less entensive import, .in particular clauses. Bymater v. Bradling, 7 Barn. & Cressw. 660.

Unlike former statutes (B. C. § 3101-04), which embraced only mechanics and builders, the present statute extends not only to them, but to their employees, and to material-men. The latter class have a lien, not only when contracting with the owner or proprietor, but when furnishing the materials to the contractor, who contracts with him. The latter lien is worked out through the contractor, and extends only to the balances which may be due him from the .owner or proprietor, for which the contractor has a lien if the requisitions of the statute have been pursued. When, without the intervention of the mechanic, materials are furnished, not to him, to enable him to do his work,^or perform his contract, but to the owner-or proprietor, that the building, erection, or improvement may be completed, there is a lien, independent of, and distinct from that of the mechanic. — Winter v. Caldwell, 14 How. 434; Van Pelt v. Hartough, 31 N. J. Law, 331.

This conclusion compels a reversal of the judgment of the City Court.

Beversed and remanded,