W. E. Caldwell Co. v. John Williams-Taylor Co. , 50 Okla. 798 ( 1915 )

Plaintiff in his brief admits that there is but one question involved in this case, and this is not contradicted by the defendants, and that question is whether or not a subcontractor, furnishing material actually used in the construction of a building, has a lien, when he gave the statutory notice of filing his lien within 60 days of the time he furnished the material, in a case where the contractor abandoned his contract, after he had been paid the full contract price, prior to the expiration of 60 days.

The statute under which the lien of the said subcontracting materialman is claimed is found in section 6153, Comp. Laws 1909 (section 3864, Rev. Laws 1910), which reads in part as follows:

"Any person who shall furnish any such material or perform such other labor under a subcontract with the contractor, or as an artisan or day-laborer in the employ of such contractor, may obtain a lien upon such land, or improvements, or both, from the same time, in the same manner, and to the same extent as the original contractor, for the amount due him for such material and labor; * * * by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished * * * under such subcontract, a statement, verified by affidavit, setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed; and by serving a notice in writing of the filing of such lien upon the owner of the land, or the improvements, or both. * * * Immediately upon the filing of such statement the clerk of the district court shall enter a record of the same in the docket provided for in section 6152, and in the manner therein specified; provided, further, that the owner of any land affected by such lien shall not thereby become liable to any claimant for any greater amount than he contracted to pay the original contractor. The risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days herein specified, and no owner shall be liable to an action by such contractor until the expiration of said sixty days, and such owner may pay such subcontractor the amount due him from such contractor for such labor and material, and the amount so paid be held and deemed a payment of said amount to the original contractor."

The agreed evidence, showing that the amount contracted to be paid the contractor by the owner greatly exceeded the amount of the submaterialman's claim, and that the lien was filed by such submaterialman within 60 days after furnishing said "tanks and towers," and notice given to said Snyder Cotton Oil Company of the filing of said lien, and said tanks and towers having been used in the construction of the building described in the petition herein, with knowledge of the owner, the plaintiff fully complied with all the requirements of said section 6153 to entitle him to the lien claimed. Said section 6153 fully provides protection to the owner, by staying action by the contractor against the owner for 60 days, against having impressed upon his property liens of submaterialmen for material furnished in the erection of a building. That the defendant did not avail itself of such protection against loss, but paid the contractor prior to the expiration of the 60 days from the time the material was furnished, for the payment of which the lien is invoked, cannot be considered as defeating the lien. In Eberle v. Drennan, 40 Okla. 59, 136 P. 162, 51 L. R. A. (N. S.) 68, it is said:

"The provisions of the mechanics' lien law should be interpreted so as to carry out the object had in view by the Legislature in enacting it, namely, the security of the classes of persons named in the act, upon its provisions being in good faith substantially complied with on their part."

It therefore clearly appears that any payment made to the original contractor by the owner, prior to the expiration of 60 days, is paid at his own risk, and if, during said time a subcontracting materialman files his lien and gives notice to the owner, as is admitted in this case, the lien of such subcontracting materialman is a valid one upon the lands and buildings embraced in the original contract. That such subcontracting materialman has a direct lien upon the condition of filing same and giving notice to the owner, as was done in this case, to the extent of the contract price, is clearly provided by said section 6153.

Defendants cite only one case in support of their contention that under the facts in this case plaintiff was not entitled to the lien which it sought to impress upon the property of the Snyder Cotton Oil Company. Said case is Christy v. Union Oil Gas Co., 28 Okla. 324, 114 P. 740, but, after a careful reading and consideration of said case, we are unable to see how it in any wise supports said contention, or is at all in conflict with the views herein expressed.

The court erred in rendering the judgment rendered, and in denying the motion of plaintiff for a new trial.

It follows that this case should be reversed and remanded, with instructions to render judgment for the plaintiff, in accord with the views expressed in this opinion.

By the Court: It is so ordered.