Pinkston v. . Young

Merrimon, J. (after stating the case). The lien given in favor of sub-contractors, laborers and persons furnishing materials for improvement on real estate, by the statute (The Code, §§ 1801,1802), does not arise and become effectual unless the person entitled to have the same “shall give notice to the owner or lessee of the real estate, who makes the contract for such building or improvement, at any time before the settlement with the contractor,” of “the amount of such labor done or material furnished.” If, at the time of such notice, the owner or lessee of the land has not paid to the contractor the money due, or to come due, to him upon or on account of the contract, and shall refuse to retain out of the amount so due so much, if there shall be so much due, as shall be due or claimed by the party having the lien, the latter may proceed to enforce his lien, and any payments to the contractor will not have the effect to discharge the lien so arising. The statute so plainly provides The plaintiffs, clearly, are not entitled to have their alleged lien enforced under the statutory provision cited, because, it appears that at the time they gave the defendant notice of their debt against the contractor for the material supplied by them, be had paid him, and owed him nothing on account of the contract. *105 Plaintiffs, however, contend that the statutory provisions cited are so amended and modified by the subsequent enactment (Acts 1887, ch., 67), as to render their alleged lien effectual without such notice given by them. We cannot so interpret that statute. It is entitled “ An Act for the better protection of mechanics and laborers,” and provides, in substance, that the “sub-contractors lien law” (The Code, ch. 41), shall be amended by adding thereto the sections enacted, which prescribe an additional method of creating and enforcing a lien in favor of mechanics and laborers. It does not purport in terms, or by reasonable implication, to repeal or modify the existing law, except that it provides that the sum due to the laborer, mechanic or artisan, shown in the itemized statement required, “ shall be a lien on the building or vessel built, altered or improved, without any lien being filed before a Justice of the Peace or the Superior Court,” as required by the statute (The Code, § 1784). This additional method requires that it shall be the duty of the contractor “ to furnish the owner of the property or his agent, before receiving any part of the contract price, as it may become due, an itemized statement of the amount owing to any laborer, mechanic, or artisan employed by such contractor, architect or other person, or to any person for material furnished, and upon the deliver)' to the owner or liis agent of the itemized statement aforesaid, it shall be the duty of the owner to retain from the money then due the contractor a sum not exceeding the price contracted for, which shall be sufficient to pay such laborer, artisan-or mechanic for labor done, or such person for material furnished, which said amount the owner shall pay directly to the laborer, mechanic, artisan or person furnishing material,” ■&c. <fcc. It is further provided, that if any such contractor or architect shall fail to furnish such itemized statement, he shall be guilty of a misdemeanor, and, upon conviction, fined or *106 imprisoned, or both, in the discretion of the Court. This stringent provision is directed against, not the owner of the property, but the contractor. The purpose is to compel the latter to supply the itemized statement, so that the laborer may be benefitted, have his right facilitated, and the owner of the property may be reasonably protected. There is no liability created on the part of the latter if the itemized statement is not supplied to him ; he cannot compel the contractor to furnish him with it, nor is he presumed to know that he has not paid the laborer or mechanic, or that he owes him any particular sum. It may be, that the contractor has paid him or secured the sum due him to his satisfaction. It would bo alike unreasonable and unjust to create such liability on the part of the owner of the property in the absence of the statement required. It would tend strongly to prevent such owners from improving their property, and such a purpose cannot be attributed to the Legislature, in the absence of some language or provision making it manifest. If the contractor shall so furnish the itemized statement, the laborers’ lien will arise and be effectual, as prescribed. If he fails to do so, then the laborer may give the owner of the property notice, and thus create the lien in his favor, as allowed and provided by the statute (The Code, §§ 1801, 1802). He may do this anyhow, and it will be safer to do so, as the contractor may fail to do his duty in furnishing the statement required of him. • In this case, the contractor did not furnish any itemized statement to the defendant, and, hence, the plaintiffs have no lien, as contemplated and allowed by the statute (Acts 1887, cli. 67). The instructions complained of are substantially correct, and the judgment must be affirmed. Affirmed.