Spaulding v. Thompson Ecclesiastical Society

Hinman, J. The plaintiff by his bill seeks to foreclose a mechanics’ ben, which he claims, on the ground of his having furnished materials and rendered services in the erection of the defendants’ church edifice. It appears, however, that the work was not done at the request of the defendants, or even for their benefit. On the contrary, it was done against their express prohibition to the original contractors, and was also done after the contractors had been fully paid the contract price for the erection and completion of the whole chui'ch. Under such circumstances we can not think the plaintiff entitled, as against the defendants, to any ben upon their church. It is true, the language of the act of 1855, (Public Acts, 1855, p. 96,) is very broad, but it could not have been intended to create a ben against a party who has not contracted, either directly or indirectly, for the work, but, on the contrary, has expressly prohibited it. If such was the intention, it would be worthy of consideration whether it is competent for the legislature thus to interfere with the rights of property. The plaintiff was in no sense a sub-contractor for any portion of the work upon the defendants’ church. A sub-contractor comes in under an original contractor. His claim should be for' work for which such original contractor would have had a ben had he performed it. Here there is no pretense that this was work which came under the original contract. It was done, we are aware, to remedy defective work performed under the original contract ; but having been done in a mode not approved of by the defendants, it should be shown, at least, that it was not contrary to the mode contemplated originally, to enable us to say that it was even a proper remedy for such defective [578] work. But assuming that it .would have been proper for the contractors to have performed the work in the manner it was finally done by the plaintiff, still, the plaintiff is not entitled to a lien upon the building, because the contract price for the whole work was fully paid before this work was, any of it, done. It is said, however, that as the defendants paid for the work before it was finished, they are bound to pay for it again to the parties who actually performed it. Here the money was paid in good faith, the defendants, from the unsettled state of their accounts with the contractors, not even knowing but that there was still a balance due after their last payment. Suppose a contractor is pre-paid for his work. If done in good faith, can there be any lien in favor of any body after such payment ? Or if, as was the case here, and we presume very often is the case, he is paid by installments as the work progresses; is the employer liable to pay the installments over again to sub-contractors whose claims arise after such payments? In such cases sub-contractors must rely on the security and responsibility of the parties employing them, and not upon a claim for a lien on the building they are erecting. Should it unfortunately happen that they lose what is due them for their services through the insolvency of their employers, there is less injustice in leaving them to bear the'loss, than in compelling the owners of the buildings to pay for them twice. We therefore advise the superior court to dismiss the plaintiff’s bill. In this opinion the other judges concurred. Bill to be dismissed.