51 Ark.] NOVEMBER TERM, 1888. 309 Basham v. Toors. BASHAM v. TOORs. 1. MECHANIC'S LIEN • Construction of dot of 1885: Right of sub-contractor. Under the Act of 1885, entitled "An act ler the better protection of mechanics, artisans, material men and other sub-contractors," where the landowner fails to reserve a fund for the benefit of sub-contractors, by withholding from the contractor one-third of the cost of the improvement; or of the amount agreed to be paid therefor as required by the act, the property improved will be bound to a sub-contractor only far the market value of materials furnished the econtrador and not for the price the latter has agreed to pdy. 2. SAKE: Same: When claim to be presented. Under the provision of the Act of 1885 which requires that a subcontractor in order to assert a mechanic's lien, must present his claim to the landowner within ten days after the "job or contract" let by the owner "shall have been fully completed," the time allowed for presenting such claim must be computed from the completion of the work to be done under the contract of the owner with the principal contractor, although the contemplated improvement may not then be completed. And where the principal contractor abandons his contract after having done work under it, his sub-contractors must present their claims within ten . days after such abandonment and cannot postpone the presentation until the work is completed under a new contract with a stranger to the first one, or is completed by the owner himself. APPEAL from Puiaski Circuit Comt J. W. MARTIN, Judge. T. B. Martin, Robert J. Lea and C. T. Coffman, for appellant. • 1. The act of March 17, 1885, will be strictly construed, and all persons claiming rights thereunder, will be held to a strict compliance with the terms of the same. While we admit that as between the owner, who contracts, and the mechanic with whom. , he contracts, statutes of this character will be liberally construed, and . a. substantial, compliance with. the terms thereof be held sufficient,.yet all .the courts hold that a statute which authorizes property to be
310 SUPUME COURT OF ARKANSAS, [51 Ark. Basham v.. Toors. encumbered without resort to Jegal process, and by one with whom the , owner has no privity of contract, must not only be strictly construed, but that there must be a strict compliance with the terms of the same. See Phillips on Mechanics' Liens, secs. 18 and 19, and cases cited. 50 N. Y., 360; 30 Ark. 568. In this case the account was not certified as correct by the contractor as required by statute, and there was no evidence to explain the meaning of the cabalistic letters, "0. K." 2. This claim, if enforceable at all, could only be enforced for the actual value of the material furnished. 66 Penn. St., 336; 74 Mo., 37 ; Phillips Medi,. Liens, secs. 79, 202, 212 ; 1 Phil., 285; 65 Mo., 598. 3. The account should have been presented within ten days from the time the contract was abandoned by Moyer, the contractor. It was then the work or job was completed as far as the contractor was concerned. Ratcliffe & Fletcher, for appellee. 1. The time the building is completed is the proper time from which to reckon the ten days for presentation, not the time the contract was abandoned. Acts 1885, p. 71, sec. 1 ; Houck on Liens, sec. 184. The statute (Acts of 1885, p. 74, sec. 1,) makes it the imperative duty of the property owner to retain one-third of tlw contract price and "to promptly pay the bills and acounts of all such persons which may be presented to him in ten days," etc. The duty becomes personal and necessarily involves a personal liability; his liability is fixed to the extent of one-third the contract price which is to be discharged by paying the bills and accounts in the order of their presentation. No discretion or option is given him in the m • a • ter. Section -4 provides that the lien shall have the same effect, force and
.51 Ark.] NOVEMBER TERM, 1888. 311 Basham V. Toors. extent and be filed, sued for and enforced as in case of persons doing work or furnishing things under contracts therefor .directly with the owner, etc. This statute brings our case elearly within the principle enunciated in the case of Y oung •v. Lyman, 9 Barr, Penn., 449. The cases referred to by appellant are based on statutes different from ours and are clearly distinguishable from this ease. • The bills which appellant claims were presented before Toors' bill was presented were all made by Basham and charged directly to him, and as between him and _Moyer stood in the attitude of bills "paid during the progress of the work;" these bills are positively excluded from payment out of the -"reserve fund" by sec. 3, of the act; if it were otherwise the statute could be easily evaded and rendered of no avail to parties doing work or furnishing material. COCICRILL, C. J. This is a suit by Toors againat Basham to enforce a me-ehanic's lien. Basham, who was the owner of certain town lots, let a contract to one Moyer to improve a house situated thereon for a stipulated compensation. Moyer got Mors to furnish materials for the purpose. Moyer had not proceeded -far with the work when he discovered fl int he . would . lose money by complying with the contract and abandoned it. He and Basham then agreed to divide the loss equally between them and Basham took up the work where Moyer left it and completed the improvement. Toors presented to Basham an account for the 'materials' fUrnished to Moyer and used by hina' in repairing the hoUse:•Three Several presenta-'tions of the account , mdre made—one, before Basham' and 'Moyer 'adjusted their -dispute; ,another t within: ten'AuSzs-..`after
312 SUPREME COURT OF ARKANSAS, [51 Ark. 13:ig hbin V. fife adjUstment, and the -%hird Within feu dayg after the work Was 'completed by ia:sbatia. The exact Eine -6f the first in-e-Sentation is net showii -and : the teatimony 'is 'Conflicting as to 'Whether the aceennt • WaS 'certified by Moyer when -first pre-' sented, as it should have been. The conit instructed the jury Mkt 'the preSentation WaS in tithe •f Made with:in ten d'ayS after BaShain had . coinpleted the work; refused to permit Basham t6 show that the market value of the materials WaS leas than the'amonnt certified to 'by Moyer; and after A. verdiet f6r the plaintiff, condemned %he Property to be sold to satiafy the lien. Bashani appeals. ' • The : appeal. invblVes "The Construction of the Act of March 17th, 1885, under , Which the lien is asserted. The Act iS Unnecessarily prOliX -and aedie f it§ PrOviSions fall 'under the iinpirtatiori icontained in the - obSerVation of Blackburn, J., in ReVinet . v. ScOtt, , 4 Beat & i Siiiith, 374, •in re -Sip e& • to an act passed in 1746, to the effect that "the statute thengh not drawn in modern times is somewhat obscure." It is supple--mental to the inechanie 7 s lien • law 'as found in chapter 96 . subdivision 11 of Mansfi`elcEs Digest, !and when read In con-'nection with the provisions :found there, its true inthnt and meaning are more apparent. It 'was intended, as its terms 'and title shovi, for the better -protection of sib-contractors— tdrin which includes 'acCording to -the- statutdry definition, all :persons.'who are 'entitled to the lien :eicept those who have centracted with 'the oWnér Or proprietor • • of -the land to be charged. Mansf. Dig., sec. 4122. The last section of 'the act stafes that it was not intended to repeal 'any part of the prior ldw. An absolute- right to •a . lien was .already proVided for the sub ,, cOntracter by viitne of secelons 4403-4 -'of MansfiehPs Digest, in every ed:se where he_ had gi-ven notice to the owner or proprietor of his inten-
51 Ark.] NOVEMBER TERM, 1888. 313 BkSham v. Toors. tion to look to the prernises for security before performing labor or furnishing materials for the contractor, and the amount of his security was regulated by the value of the services rendered or . of the materials furnished without regard to the contract between 'the . owner and the first contractor, or the amount due thereunder. If notice was not given to the owner in advance of furnishing materials or performing labor, the sub-contractor's security was limited to the amount due from the owner to the first contractor; if nothing was due no lien cOuld be acquired. in the absence of a previous notification. Mansf. Dig., sec. .4421. Where, therefore, the statutory notice had nut been given, the owner could defeat the sub-contractor's right to a- lien by paying -the contractor -what his contract called for. It was to supply, in a measure, that supposed defect in the law that the Act of March 17th, 1885, was enacted. To accomplish that end the act makes it the owner's duty to withhold from his Contractor one-third . of the cost of the improvement or of the amount agreed to be paid therefor, for a period of ten days 'after the work under the contract is completed; and to the .extent ,of the . sum thus required to he reserved, suly icontractors may establish liens upon the property -that is improved by them, upon complying with the terms of the act, although the notice required by section 4403, supra, has not been given, and notwithstanding the owner has ?aid the .contractor in full. To perfect the lien the act requires the sub-contractor to present his claitn to the owner with the contractor's certificate that it is correct within the ten days . ,named. rf the contractor refuses to certify the account, the ,act points out the course to . be . pursued, hut that is not -material to the 'determination of thiS -canse. The owner is required -to pay the sub-con-tra'ctint who present their ceitified claims Within the pre-
314 SUPREME COURT OF ARKANSAS, [51 Ark. Basham v. Toors. scribed period out of this reserved fund. The first question that arises here is, shall he pay the material man the amount 1. htechan- agreed upon between the latter and the conic's Lien: Construe- tractor, or only the fair market , value of the tion of act of 1885: Right materials ? So long as the reserved fund is ac-of sub-contractor. tually held by the land-owner for the benefit of the sub-contractors, the law is plain. It is then a debt due from him to the contractor and the act provides the means of appropriating it to the payment of what the contractor owes • to the laborers and material-men who have contributed to the performance .of the contract under which the fund was earned; and in doing so a beneficent end is worked out without injustice to any one.. But where the land-owner has failed, as Basham did, to reserve the fund and owes the contractor nothing, is his property bound to the sub-contractor only for the value of the materials, or for the price agreed to by the contractor ? The former act in favor of material-men limits their right of recovery against the property to the value of the materials used whether the owner was indebted to the contractor or not; and the question is, does the act of 1885 change the rule ? As we have seen, the act declares it was not the intention to repeal any provision 'of the former law. Was it then the intention to fix different rules for the measure of recovery, to be determined only by the act under which the sub-contractor asSerts his' claim ? Or, to put the question 'differently, was it intended to allow a recovery of only the value of the materials if proceedings were had under 'section 4403 of Mansfield's Digest, but to allow the price agreed to by the contractor, if the claim was under the act of 1885 ? The 'double rule would be productive of uncertainty and confusion • in many- eases; and where both laws had been comPlied with and the claim of the sub-contractor was greater than the fund required to be reserved, we should
51 Ark.] NOVEMBER TERM, 1888. 315 Basham v. Toors. have to apply each of the standards to the several parts of the same claim in one suit. We should be slow to conclude that such was the legislative intent. If the design to imnish the owner for a failure to reserve the required fund by holding him and his property liable for the contractor's agreed price, clearly appeared, effect would be given to it as was done in the case of Bullock v. Horn, 44 Ohio St., 420. But the rule for the construction of statutes which create charges against individuals or against their property without their assent is this : The burden shall not be extended beyond the plain meaning of the terms creating it (Flournoy v. Shelton, 43 Ark., 168 ; Peay v. Field, 30 Ib., 600 ; Dann v. Ry., 27 Ib.°, 564) ; but when the legislative intent to create the charge . is clearly ascertained, the remedy shall not be frittered away by a too close adherence to those requirements of the statute which are designed to regulate the procedure for enforcing the charge. Buckley v. Taylor, ante; Anderson v. Seamans, 49 Ark. 475. Now the only provision of the statute prescribing the rights of the sub-contractors in case the land-owner fails to reserve the fund for his benefit, is found in section 4 of the act. It gives him a lien for "work or labor done, or materials, machinery or fixtures furnished." • here the statute gives a lien for "materials," without saying more, and they are not furnished Under a contract with the owner, the extent of the lien is commonly held to be the market value of the materials when furnished. 2 Jones on Liens, sec. 1306 ; Deardroff v. Everhartt, 74 Mo., 37 ; Laird v. Moonan, 32 Minn., 358 ; Lee v. Burke, 66 Penn. St., 336 ; Cattanach "v. Ingersoll, 1 Phil. R.; 285 .. - The other provisions of the section relate only to the effect of the lien and the Mode of enforcing it, and have no bear-
316 SUPREME COURT OF ARKANSAS, [51 Basham v. Toors. ing on the extent or amount of it. It is not plain, therefore, that it was intended to preclude the owner by the agreement as to 1;alue between the contractor and material-man, and we should not make a judicial extension of the terms of the act. The court erred in holding that the value of the materials was not open to enquiry. The only remaining question presented by counsel, which we deem essential to determine, is as to the correctness of the court's charge to the effect that a presenta- 2. Same: Whenpr claim to esent- tion of the certified account within ten days al- be ed. ter Basham had completed the work, was in time. The time of presentation is material. The language of the statute is that, it must be within ten days "after such job or contract (that is the job or contract previously mentioned as having been let by the owner to a contractor,) as originally 'made or amended shall have been fully completed." Section 1, Act of March 17th, 1885. Now as there is no contract and no privity of contract between the owner and the sub-contractory the completion of the work under the contract mentioned• in the statute must mean the contract of the owner with the person through whom the sub-contractor's lien must be worked out, i,. e., the contractor ; and the completion of that contract is the period from which the sub-contractor must begin to compute the time allowed for the presentation of his account. The completion of the work under the contract need not be the completion of the contemplated improvement. It may be that only a part of the work has been let, or the completion of the structure may not be in present contemplation. And so, when the contractor abandons his contract, the work under it must be regarded as completed within the meaning of the statute, else the sub-contractor could not enforce -his lien at all when the owner has seen fit to pay off the contractor.
51 Ark.] NOVEMBER TERM, 1888. 317 As was said in Cattin v. Douglass, 33 Fed. Rep., 569, "It would be inequitable and unreasonable and contrary to the spirit of the law, to hold that parties are absolutely barred of all rights to the lien where the work is prematurely stopped or abandoned without fault of such parties. Such a construction would place the material-men and laborers at the mercy, dishonesty, fickleness or misfortune of the owner or contractor." But if the work is completed for the tairpose of enabling the sub-contractor to enforce his lien, it is completed so as to allow the owner to settle with the contractor after ten days have elapsed, and so bar the right to a lien. A change in the contract, ar an "amendment" of it, as the statute has it, or a suspension of the work for a short period, will not affect the lien ; but when the contractor abandons his contract after having done work under it and the owner makes a new and independent contract with a stranger to the first one, or completes the work himself, the material-men and laborers under the first contractor cannot postpone the presentation of their claims to the completion of the improvement under the new contract, but must act within the prescribed period after the abandonment of the contract under which they have acquired their rights. 2 Jones on Liens, secs. 1438, 1440 ; see Bertromd v. Byrd, 5 Ark., 651. The court erred in instructing the jury otherwise. For the errors indicated, the judgment is reversed and the cause will be remanded for a new, triaL
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.