McClintock v. Criswell

The opinion of the court was delivered, by Williams, J. This was a scire facias sur mechanic’s lien, in which the court below directed judgment to be entered for plaintiff against the defendants for want of a sufficient affidavit of defence. The plaintiff’s claim was for work done and materials furnished, at the request of the lessees and occupants of the building, in and for the construction of “ a new front, with glass windows and door,” which they had covenanted “ to put in at their own cost,” in consideration of the lessor’s extension of the lease for another year. Is the plaintiff’s claim a lien on the building as against the lessor and owner of the property ? It is, if the work was done with the written consent of the owner, as required by the act under which the claim is filed, otherwise it is no lien. The only consent which the lessor gave is that which is evidenced by his covenant with the lessees binding them to make the improvement at their own cost. Undoubtedly, as between the parties to the covenant, this was a consent on the part of the lessor that the lessees might make the improvement. [185] But was it such a consent as is required by the act in order to entitle the plaintiff to a lien for the work which he did, and the materials which he furnished, at their instance, in making the improvement ? The consent which he gave, if the covenant can be regarded as such, was not absolute but qualified and conditional. By its very terms it amounted to no more than a consent that the lessees might make the improvement at their own cost. Speaking through the covenant the lessor said to the plaintiff: “I consent that the lessees may put a new front in the building demised to them, provided they do it at their own cost, but not otherwise.” What right, then, had the plaintiff, or what right have we to treat the consent as absolute — to take the consent without the qualification annexed to it ? It seems to us that the consent intended by the act, under which the claim in this case was filed, is an absolute consent — such a consent as is consistent with the right to do the work on the credit of the building, though it may not expressly authorize it. It must not be clogged with any such condition or qualification as is inconsistent with the right to charge the building with the cost of the work, or which impliedly forbids it. For these reasons we are of the opinion that the consent evidenced by the covenant in this case is not such as the law requires. And in so deciding we do no injustice to the plaintiff. If he did the work without reference to the covenant, then he did it on the personal responsibility of the lessees, and is not entitled to charge the building for the price of the work and materials. If he looked at the covenant he had notice that the work was to be done at the cost of the lessees, and that the lessor did not intend to incur any responsibility for it whatever. What right, then, had he to do the work on the credit of the building ? If he was not willing to do it on the terms assented to by the owner, he should have declined the job or exacted security for its payment. He had no right to do the work and charge the building. It follows that under the facts set forth in the affidavit of defence he was not entitled to recover, and the judgment must be reversed. Judgment reversed, and a procedendo awarded. Thompson, C. J., dissented.