George Alling'S Sons Co. v. Cheshire Street Railway Co. ( 1910 )

The demurrer to the entire complaint was properly overruled. Certainly the averments of paragraph 3 of the first count are sufficiently broad to permit the plaintiff to prove that its agreement with The Walther-Burke Construction Company was approved by the defendant.

The plaintiff was not required to file a certificate of lien with the town clerk of every town in which the railroad property was situated. To relieve the lienor, in cases of liens upon railroads, from filing an unnecessarily large number of certificates was evidently the purpose of the exception of § 4140 requiring the certificates to be filed with the secretary of State.

The questions raised by the second and third reasons of appeal relate principally to the construction to be placed upon these words of § 4140. "If any person shall have a claim for materials furnished or services rendered for the construction of any railroad . . . under any contract with or approved by the corporation. . . ." The broad claim is made by the plaintiff that by this language the person furnishing materials or rendering services required and used in the construction of a railroad is given a lien, although he has made no contract for them with the corporation owning or managing the railroad, and although the contract which such person himself made for them was never approved by the company owning or managing the railroad. In other words, that the requirements of § 4140 are satisfied if the materials furnished or services rendered comply with the provisions of the original contract, or with those of some other than the original contract, which has been approved by the corporation, but to which the person furnishing the materials or rendering the services was not a party. Stated with reference to this case, the plaintiff's claim is that since the materials furnished by the plaintiff under its contract with The Walther-Burke Construction Company were such as were called for by the original contract between the corporation and Roberts, and since they entered into the construction of the railroad, and the defendants received the benefit of them, they are to be regarded as furnished under a contract made with or approved by the defendant Cheshire Street Railway Company, although the latter in no other way was a party to or approved of the plaintiff's contract with the Walther-Burke Construction Company.

The language above quoted is not fairly susceptible of the construction claimed by the plaintiff. It is undoubtedly true that all the materials called for by the terms of the original contract between the railroad company and Roberts, by whomsoever furnished, are materials for the furnishing of which the defendant street-railway company contracted, and of which they approved. The fact that they are the materials which the railroad corporation contracted for renders them materials of which they approved. But the fact that the railroad company contracted for them with Roberts, and that they were therefore necessarily materials the furnishing of which the railroad company approved, does not render them materials which the plaintiff furnished under a contract with the defendant, nor materials which the plaintiff furnished under a contract of which the defendant approved. The lien given by this section is based upon a claim. The language of the section is "and said claim shall be a lien." That claim must be one which the lienor has by virtue of some contract. By "virtue of any contract" were the words of the original Act. Public Acts of 1871, p. 722, Chap. 137. The words of a similar provision, in § 4135, relating to liens on buildings, are: "If any person shall have a claim . . . for materials furnished or services rendered in the construction . . ., and such claim shall be by virtue of an agreement," etc. The words "by virtue of any contract," or "under any contract," refer to contracts to which the one furnishing the materials or rendering the services is a party. The plaintiff was not a party to the contract between the corporation and Roberts, nor to that between Ley Company and the Walther-Burke Construction Company. The only contract which gave the plaintiff any legal claim was that between itself and The Walther-Burke Construction Company, and it appears that the defendant never approved of that contract, or even knew of its existence, or of the contract of The Walther-Burke Construction Company with Ley Company. The words "contract with or approved by," manifestly refer to two different kinds of contracts, one to which the railroad company was a party, and the other to which it was not, but which it approved of. If the person furnishing materials or rendering services was a party to the first, he was given a lien; if he was not, but his claim arose under another contract, he had a lien only when such contract was approved by the corporation. The words "approved by the corporation" naturally refer to another contract than one made by the corporation. Had it been intended to give a lien for all materials furnished or services rendered, which, having been used in the structure, complied either with the provisions of the original contract or some other contract approved by the corporation, even though the lienor was not a party to it, we should expect to find a provision that any person furnishing materials or rendering services which complied with the terms of any contract approved by the corporation, should have a lien, etc. But that the contract to be approved of by the owner is one to which the claimant is a party, and that such claimant does not acquire a lien merely because he has furnished materials required by the terms of the original contract, even though such materials have entered into the structure, was clearly decided in Alderman v. Hartford New York Trans. Co., 66 Conn. 47, 33 A. 589. In that case the owner had contracted with A for the building of a house. A made a subcontract with B, without objection from the owner. B ordered materials from the plaintiff which, with the knowledge of the owner of the land that they came from the plaintiff, were, with such owner's acquiescence, delivered and used in the building. Upon these facts it was held that the materials were not furnished by the plaintiff "by virtue of an agreement with or by consent of the owner," within the meaning of those words in § 4135.

But the plaintiff claims that the provision of § 4140, limiting the right of lien upon a railroad to claims based upon a contract made with the corporation, or approved by the corporation, was virtually repealed by the provision of § 1 of chapter 121 (p. 1052) of the Public Acts of 1899, and chapter 80 (p. 1228) of the Public Acts of 1901, now the last clause of § 4137 of the General Statutes. That provision is as follows: "No subcontractor, without a written contract complying with the provisions of this section, and no person who furnishes materials or renders services by virtue of a contract with the original contractor or with any subcontractor, shall be required to obtain an agreement with, or the consent of, the owner of the land, as provided in § 4135, to enable him to claim a lien under this section."

This provision, it is claimed, so applies to or has been incorporated in § 4140 as to enable one to obtain a lien upon a railroad, although the contract by virtue of which he has furnished materials or rendered services was neither made with nor approved by the railroad company, within the meaning of those words in § 4140.

It does not appear, as seems to be claimed, that this question was decided in Egan v. Cheshire Street Ry.Co., 78 Conn. 291, 61 A. 950. In holding that the complaint in that case was not demurrable, we only decided that the averments of the complaint would permit proof of facts which would entitle the plaintiff to a lien under § 4140. Those averments were similar to those of paragraph 3 of the first count of the complaint in this action, which we have already said are sufficiently broad to permit proof that the agreement under or by virtue of which the plaintiff's claim arose was approved by the railroad company.

In the case of Barlow Brothers Co. v. Gaffney,76 Conn. 107, 55 A. 582, it was held that the plaintiff, having furnished materials and rendered services in the construction of a building by virtue of a contract with a subcontractor, was not required to obtain an agreement with or the consent of the owner of the land, as provided in § 4135, to enable him to claim a lien. But it is to be remembered that the lien there claimed was upon a building, as given by § 4135, and not upon a railroad, as given by § 4140. In that case the various legislative Acts regarding liens upon buildings and their appurtenances, not upon railroads, from 1836 down to 1902, are reviewed.

Upon examining such legislation we find that when in 1871 an Act was passed giving a right of lien upon railroads, now § 4140 of the General Statutes, it differed materially from the statute regarding mechanics' liens upon buildings, which had been in force for many years, in this: that while the latter gave a right of lien to any person who had a claim for materials furnished, or services rendered in the construction of any building or its appurtenances exceeding the sum of $25 (Rev. of 1866, Title 38, p. 549; id. 1875, p. 359, Chap. 7, § 9), the Act of 1871 gave a right of lien upon railroads only to those having claims for materials or services by virtueof a contract with or approved by the corporation owning or managing the railroad. This difference continued until 1875, when, as was said in Barlow BrothersCo. v. Gaffney, 76 Conn. 107, 55 A. 582, "the important provision requiring the claim to be ``by virtue of an agreement with or by consent of the owner'" of the land upon which the building was erected, was added to the building lien law by amending § 9 of chapter 7 of the Revision of 1875 by the insertion of those words. Public Acts of 1875, p. 9, Chap. 15. This placed practically the same limitation upon the character of the claims for which a lien could be had upon buildings and upon railroads. In 1879 it was enacted that no subcontractor, with or without a written contract, should be required to obtain an agreement with, or the consent of, such owner, to enable him to obtain a lien under § 11 of chapter 7, p. 360, of the Revision of 1875. Public Acts of 1879, p. 384, Chap. 43. And in 1899 and 1901 were passed the Acts containing the provision above quoted, that no subcontractor, and no person furnishing materials or rendering services by virtue of a contract with the original contractor or with any subcontractor, should be required to obtain an agreement with, or the consent of, the owner of the land. The Act of 1901 was passed as an amendment to § 3020 of the Revision of 1888, and it expressly states that the agreement with, or the consent of the owner, to which it refers, is that provided for in § 3018 of the Revision of 1888, which was the section giving liens upon buildings and the land upon which they stand. Section 3022 of the Revision of 1888, which was the section providing for liens upon railroads, is not named in these Acts of 1899 and 1901. And so, too, in § 4137 of the Revision of 1902, the agreement with, or consent of, the owner, which is no longer required to be obtained, is expressly stated to be that provided for in § 4135, the section which provides for a lien upon buildings and the land upon which they stand, and no mention is made of the "contract with or approved by the corporation owning or managing" a railroad, provided for in § 4140 to enable one to obtain a lien upon a railroad. There is now, and has been since 1901, practically the same marked difference as to requiring the lienor to have an agreement with, or one approved by, the owner, between § 4140 and § 4135, modified as the latter is by the last clause of § 4137, as existed from 1871 to 1875 between the law giving liens upon railroads and that giving liens upon buildings.

But it is claimed that by the language of § 4140 — "such liens shall be asserted, perfected, and foreclosed in all respects in accordance with the provisions of" § 4137 and other named sections — said last clause of § 4137 is made to apply to § 4140. But the language just quoted was manifestly intended to describe the manner in which "such liens," that is, the liens given by § 4140, should be "asserted, perfected, and foreclosed," namely, by notice, certificate, and action. The language of the original Act of 1871 was that "the manner of filing, perfecting and foreclosing said lien, shall be in accordance with" certain named provisions. In the Revision of 1888 the language is, "the manner of asserting and perfecting such lien, by notice, certificate, and foreclosure, shall be in all respects in accordance with the provisions of the four preceding sections," with the exception as to filing the certificate with the town clerk. In the Revision of 1902 the words "notice, certificate, and foreclosure" were very properly omitted, as they were clearly covered by the words "in all respects."

The last clause of § 4137 does not do away with the requirement of § 4140, that to enable one to obtain a lien upon a railroad the materials furnished or services rendered by him must be under a contract with or approved by the corporation owning or managing the railroad. If it could be said that the last clause of § 4137, which we have been considering, applies to § 4140, it might still be questioned whether the Walther-Burke Construction Company, with which the plaintiff contracted, was a subcontractor within the meaning of that word in said provision in the Acts of 1899 and 1901. See Barlow Brothers Co. v. Gaffney,76 Conn. 107, 111, 55 A. 582; Spaulding v. ThompsonEccl. Soc., 27 Conn. 573, 577. But it is unnecessary for us to decide that question in this case. The facts show that the plaintiff did not contract with The Cheshire Street Railway Company, and that its contract with the Walther-Burke Construction Company, under which alone it furnished materials, was not approved by the railroad company. It therefore has no lien upon the railroad property.

There is error in the final judgment, and it is set aside, and the case remanded with directions to render judgment for the defendants.

In this opinion the other judges concurred.