Gentry-Bowers Lumber Co. v. Hamill

OWEN, C. J. Action by the Gentry-Bowers Lumber Company for a materialman’s lien against defendants in error. From judgment for defendants, plaintiff appeals. The lumber and material mentioned in this action was furnished by plaintiff to' Shirley, a contractor, and used in the erection of a building owned by Hamill. The lien is sought against the owner on -the theory that the contract to erect the building made tjie contractor his agent in purchasing the material. It is not sought to enforce a subcontractor’s lien. Under sec. 3862, Rev. Laws 1910, any person furnishing material under a contract with the owner has a lien upon the land on which the building is erected. But he does not have a lien in the absence of an en-forcible legal contract with the owner. Lee v. Tonsor, 62 Oklahoma, 161 Pac. 805; Clark v. Hall, 10 Kan. 81. AVhere the owner of property makes a contract with a builder to erect a building and to furnish lumber therefor, and such contractor purchases the lumber himself, but fails to pay for same, the contractor alone is responsible;, and no lien attaches to the building, or land upon Which it is erected, under sec. 3862 of the statute, in favor of the creditor. Darlington-Miller Lbr. Co. v. Lobitz, 4 Okla. 355, 46 Pac. 481. Such ma-terialman might have a lien as subcontractor under section 3864, Rev. Laws 1910, but no *211 right is claimed in this action under that section of the statute. The contract between Hamill and Shirley for the erection of the building did not constitute Shirley the agent of Hamill for the purchase of the material. Cahill-Swift Mfg. Co. v. Sayre, 72 Oklahoma, 178 Pac. 671; Stetson-Post Mill Co. v. Brown, 21 Wash. 619, 59 Pac. 507, 75 Am. St. Rep. 862. It is urged by counsel that the material was furnished with the knowledge of Hamill, and, that being true, plaintiff was entitled to its lien, relying upon cases construing the statutes of Maine and Massachusetts which provide for a lien where the material is furnished with the knowledge and consent of the owner. Our statute gives a lien only under contract with the owner. These authorities are not in point under our statute. The judgment of the lower court is affirmed. All the Justices concur, except RAINEY and HIGGINS, JJ., not participating.