Colorado Iron Works v. Riekenberg , 4 Idaho 262 ( 1894 )

HUSTON, C. J.

The plaintiff, a corporation, made a contract with defendant, who is the owner of a certain mining claim situate in Owyhee county, Idaho, to furnish him certain machinery to be used in the construction of a quartz-mill upon or adjacent to said mining claim. By the terms of said contract the machinery was to be paid for upon delivery. The machinery was furnished according to contract, and was used in the construction of the said mill. The machinery was delivered and accepted on the twenty-first day of June, 1893. On the twenty-second day of July of same year plaintiff filed its notice of lien under the statutes, and in due time brought suit to foreclose the same. To the complaint filed by plaintiff in such foreclosure suit defendant filed a general demurrer, which was sustained by the court, and, plaintiff declining to amend its complaint, judgment was entered for defendant for costs. From such judgment this appeal is taken.

The only questions raised upon the hearing are: 1. Was plaintiff's notice of lien filed in time? 2. Does the notice of. lien contain a sufficient description of the property sought to be encumbered thereby to answer the requirements of the statute? It is claimed by respondent that plaintiff, being a “materialman,” is not nor cannot be considered an “original contractor,” as that term is used in our statutes; and that,, therefore, it was not entitled to the limit of sixty days provided by the statute for the filing of notice of lien by “original contractors”; and in support of this • contention respondent cites several cases from California which would seem to support his position. There seems to be an irreconcilable conflict between the conclusions reached by the various courts which have been called upon to pass on this question. In California it is held that there can be but one “original contractor”; that although he who furnishes the material for the structure makes his contract directly with the owner — has no relation to or privity with the contractor for the erection of the structure — still the former is not an “original contractor,” but only a “material-man.” To illustrate: Section 10 of the Idaho lien law provides as follows (Laws 1893, p. 52) : “The original contractor or subcontractor shall be entitled to recover upon the claim filed by him only such amount as may be due to him according to the terms of his contract, after deducting all claims of other parties for work done and materials furnished to him,” etc. Row, we will suppose that A desiring to erect a building, makes a contract with B, who resides in Boise city, where the building is to be erected, to perform all of the work upon such building from ground to roof for the gross sum of $5,000, and at the same time A makes a contract with C, who resides in Portland, Oregon, to furnish all the materials of every kind necessary to be used in such building for the sum of $10,000. If, as is claimed by the contention of respondent, B is the only “original contractor” and C is only a “materialman,” and both find it necessary to file liens for their security, what sort of a position are they in? The amount of C’s security from B cannot exceed the contract price B is to receive for erecting the building, and that only equals one-half of the contract price agreed to be paid by the owner to C for the material used in constructing the building. How can it be reasonably claimed that under our lien law B has a higher right or is entitled to more protection than C? But the provision of section 10 is that the “original or subcontractor shall be entitled to recover .... for work done and material furnished to him”; and the “materialman” in this case has never furnished or agreed to furnish any material to the “contractor,” “original or sub.” All of his dealings have been with the owner; he has known no one else — has given credit to-on one else; and yet, by the reasoning of the California cases, he is not an original contractor, and his rights under the lien law are made subservient to those of the original contractor for the building of the structure. It seems to us that the beneficence of the statute is lost in such a construction, and we are admonished by section 2, chapter 5, cf our lien law, that all its provisions, and all proceedings under it, are to be liberally construed, with a view to effect the object of the act; and this is at variance with the rule in California, where it is held the statute must be strictly construed. (Wood v. Wrede, 46 Cal. 638.) A careful examination of the lien law of California will develop many and quite important differences between it and the lien law of Idaho. Under the statutes of Idaho any person contracting directly and exclusively with the owner, and between whom and the contractor for the construction of the structure there is neither relation of interest nor privity of contract, is an original contractor, and as such has the sixty days provided in the statute for the filing of his notice of lien. In this construction we are in accord with the courts of many states having a statute almost identical with ours. (Matthews v. Association, 83 Tex. 604, 19 S. W. 150; Hearne v. Railway Co., 53 Mo. 325; Bank v. Dashiell, 25 Gratt. 616; Planing Mill Co. v. Grams, 72 Wis. 275, 39 N. W. 531; Phillips on Mechanics’ Liens, secs. 40-42; Jones on Liens, sec. 1283.) We think the description of the property in the notice of lien sufficient. The judgment of the district court is reversed, and the cause remanded, with instructions to overrule the demurrer of defendant. Costs to appellant.

Morgan and Sullivan, JJ., concur.