Johnson v. Dewey

By the Court, Sanderson, J. : This action was brought and tried in the Court below, and has been argued here, upon, as we consider, a mistaken theory. The theory has been that Senatz was the original contractor, and that the plaintiff, Johnson, was a subcontractor within the meaning of the statute of 1862 in relation to the liens of mechanics and others. (Stats. 1862, p. 384.) But such is not the relation of the parties. The plaintiff, Johnson, was the original contractor, in the sense of that statute, and he contracted with Senatz, and not with Dewey. Senatz was the tenant of Dewey, and desired, for his own benefit, that the house should be raised and improved, and was willing to pay the cost of raising, provided Dewey would consent, and would extend his lease for six years, and advance him three thousand dollars, in consideration of which advance he (Senatz; would pay fifty dollars per month more rent than he was then paying. To this proposition Dewey assented, and thereupon Senatz proceeded to raise the house. To that end he advertised for bids in his own name. Several contractors engaged in that business responded. The plaintiff, Johnson, put in the lowest bid and obtained the contract. A written contract was then drawn up and signed by them, as required by the second section of the statute in question, by which Johnson agreed to raise the house and make certain improvements, and Senatz agreed to pay him the sum of six thousand one hundred and eighty dollars, to be paid as the work progressed. Thus- Senatz, and not Dewey, was the person who, in the sense of the statute, “caused” the house to be raised and improved, and Johnson, and not Senatz, was the person who, in the sense of the statute, “ contracted” to raise it, and raised it. The lien, therefore, which the plaintiffs acquired, if any, was not upon the interest of Dewey, but apon the interest of Senatz, which was [625] that of a lessee. They acquired no right of action against Dewey, nor any lien upon his interest in the property. (Section 40 of the statute.) Judgment reversed and cause remanded, and remittitur directed to issue forthwith.