Norton v. Clark

Emery, J. Under our Statute of Liens, R. S., ch. 91, the claimant of a lien for labor or material performed or furnished in erecting a building, must establish as a proposition of fact that he performed or furnished the labor or material, either by virtue of a contract with the owner of the building, or by the consent of such owner. In these cases before us, the plaintiff sought to establish the alternative fact, viz : that the labor and materials were performed and furnished by the consent of the owner. He performed and furnished the labor and material at the request of one Clark, the defendant. At the trial, as tending to establish the fact of the owner’s consent thereto, he offered in evidence a written contract between the owner and Clark providing for the erection of the building by Clark for a gross price, Clark to procure all the necessary labor and material. To this evidence the owner objected, but it was admitted and he excepted. The fact that such a contract was made, clearly tends to prove that the owner consented to the furnishing of labor and materials by others at Clark’s procuration. He could not reasonably have expected Clark to personally perform all the labor, and have on hand all the materials. He must have anticipated that Clark would procure much of the labor and materials from others. Hence his consent thereto may be reasonably inferred from his making such a contract. The written contract when admitted and read in evidence, disclosed a stipulation by Clark, that no liens should exist or be claimed for any labor or materials furnished by Clark or by others employed by him. The owner claimed that this stipulation barred the plaintiff’s lien,— though he had no previous knowledge of it,— he having acted under Clark and having put in the contract as part of his evidence. The court ruled otherwise and the owner excepted. The argument is that, having put the contract in evidence, the plaintiff is bound by its terms. Not so. The plaintiff did not put it in as his contract, but only as a written admission by the owner tending to prove consent by him. The plaintiff, having [360] no knowledge of the stipulation, cannot be deprived by it of any rights he had acquired by contract or by statute, even though he prove it as a circumstance to establish such rights. Neither does the fact that the plaintiff was in Clark’s employ make him subject to any stipulations Clark might choose to make with others. This particular stipulation, like all other stipulations, binds only those who made it or assented to it. The plaintiff did neither. Motion and exceptions overruled. Peters, C. J., Virgin, Libbet, Foster and Whitei-iouse, JJ., concurred.