Jones v. Carey-Lombard Lumber Co.

Mr. Presiding Justice Horton

delivered the opinion of the court.

The bill of complaint was filed in this case by appellee to enforce a mechanic’s lien against the lots of land described in said lease contract and the improvements thereon. Said Kane and Meyer have no title to or interest in said land other than that acquired under said lease. By the decree entered in said cause, it is provided that appellee is entitled to a lien upon the title and interest of appellants in said land.

It is contended by counsel for appellants that the claim of appellee, if any it has, is that of a sub-contractor] that no notice was served as required by statute and that therefore appellee is not entitled to enforce a mechanic’s lien against the land of appellants.

In reply, counsel for appellee say in their printed argument :

“We do not claim to have served any sub-contractor’s notice upon the owner. We stand or fall upon our having completely complied with the lien statute in regard to original contractors.”

It seems to be the position of counsel for appellee that under the provision of Sec. 15, Ch. 82, Hurd’s Stat. of 1899 (being Sec. 1 of Mechanic's Lien Law of 1895), appellee is entitled to a mechanic’s lien as an original contractor. Said section provides:

“ Any person who shall by any contract with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to improve the same, furnish material, etc., shall be entitled to a lien.”

That provision does not apply to one who is in fact a subcontractor. To hold otherwise would in effect be a judicial repeal of all the numerous sections in that act relating to sub-contractors. Sec 36 of said Ch. 82, provides:

“ Every person who shall in pursuance of the purposes of the original contract, furnish any material * * * shall be known under this act as a sub-contractor.”

In every original contract with the owner for the improvement of land, the original contractor is “ one whom such owner has authorized and knowingly permitted to improve” such land. But a material man who furnishes material for such improvement under a contract with the original contractor, is not himself an original contractor, but is a subcontractor. The statute is intended to apply to cases where the “ owner has authorized or knowingly permitted ” some one to so act as to constitute himself an agent for the owner. It is intended to prevent frauds, not to annul or set aside Iona fide contracts with owners.

Said Kane and Meyer agreed with appellant, J. Russell Jones, to erect a building and make improvements upon the land in question such as they desired for their business. The fact that the agreement for the making of such improvements is embodied in the same instrument with, and forms a part of, the lease, does not change its effect or the construction to be given to it.

We do not wish to be understood as holding that said agreement, made as it was between landlord and tenant, as to improvements upon the premises demised to be used by the tenants in their business, constitutes a building contract within the terms and meaning of the mechanic’s lien statute. But if it be such a contract, then appellees are subcontractors; and if it be not such a contract, then it is a contract with said Kane and Meyer as principals for the improving of their estate as tenants. In the latter case appellee might be entitled to a lien upon the estate of the tenants. In neither case is the appellee entitled to a lien upon the property of appellants.

The decree of the Circuit Court is reversed and the cause remanded with directions to dismiss said petition. Reversed and remanded with directions.