Hamilton v. Naylor

Worden, J. — Complaint by the appellant against the appellees, as follows: “James Hamilton complains of William N. Naylor, Bazil McCann and John H. Lillie, and says that the defendant William N. Naylor is indebted to the plaintiff in the sum of eleven hundred and eighteen dollars and ninety cents, for work and labor done and materials furnished for the construction of a house for said defendant William N. Naylor, and at his instance and request, on lot number thirty-three (33) in the town of East Connersville, in the county of Fayette, in the State of Indiana, during the years 1874 and 1875, by the late firm of Hamilton & Naylor, which said firm was composed of the plaintiff, James Hamilton, and the defendant William N. Naylor, a bill of the particulars of which is filed herewith .marked A. And plaintiff avers that afterward, to wit, pn the 17th day of June, 1876, at 8 o’clock in the forenoon of said day, the said James Hamilton and William N. Naylor, late partners in trade under the firm — 173 — name of Hamilton & Naylor, and within sixty days after the completion of the house upon which the work and labor was done and the materials furnished, as set forth in said bill of particulars, in and upon the erection and construction and building of a certain dwelling-house upon lot number thirty-three in the town of East Connersville, county of Fayette, in the State of Indiana, as laid out by Bazil McCann, filed in the recorder’s office of Fayette county; in the State of Indiana, a notice of their intention to hold a mechanic’s lien on said lot numbered thirty-three and the house thereon situate, for the sum of eleven hundred and eighteen dollars and ninety cents, which said notice was by the recorder of said county of Fayette, and State of Indiana, on the said 17th day of June, A. D. 1876, duly recorded onpagesl21 to 124 of book A of the records for mechanics’ liens for said county, a copy of which notice and recording is filed herewith marked B, and made a part hereof. And afterward, to wit, on the 17th day of March, 1877, said William N. Naylor assigned, transferred and delivei’ed to plaintiff all his right, title and interest in and to said account and notice of lien, copies of which marked C and D are filed herewith and made a part hereof; which said sum of eleven hundred and eighteen dollars and ninety cents is now due and unpaid ; and the plaintiff avers that said Bazil McCann and John H. Lillie hold or pretend to hold a claim or title to said real estate, and they are hereby made parties defendants to answer as to any interest or claim they have or pretend to have to said real estate, or any part thereof. Wherefore,” etc. Judgment was demanded against Taylor for $1,500, and that a lien therefor upon the property be adjudged and enforced. The notice of the lien, a copy of which was filed with the complaint, contained an itemized account, running from August 29th, 1874, to February 9th, 1875. The account consisted of various items of lumber of different kinds, and some other building materials, and a large num — 174 — her of days’ work. The last item was for dressing 252 feet of lumber, $1.00. , On motion of McCann and Lillie parts of the complaint were struck out, and a demurrer filed by them, for want of sufficient facts, to the complaint as thus cut down, was sustained, and the plaintiff excepted. Final judgment was rendered in favor of McCann and Lillie, and the plaintiff took a personal judgment against Naylor for his debt, he not having answered. Error is assigned upon the ruling of the court in striking out parts of the complaint, and in sustaining the demurrer thereto. We have transcribed the complaint as it originally stood, ■.and have not thought it necessary to consider separately the ■question arising on the striking out of parts thereof ; because, if the demurrer should have been sustained, had no portion been struck out, no harm was done by striking out. Two points are made by the appellees McCann and Lillie, ■as we understand the brief of counsel: First. That Naylor could not acquire a mechanic’s lien on his own property ; and, therefore, Hamilton & Naylor, as partners, could not acquire such lien; . Second. That the action to enforce the lien was not ■brought within the time provided for by the statute. We express no opinion upon the first point. The last one seems to us to be well taken. The last item in the account, ■as we .'have seen, was of the date of February 9th, 1875, and this action was not brought until March 23d, 1877. Section 651 of the code provides that “Any person having ■such lien, may enforce the same by filing his complaint in the ■circuit court, or court of common pleas of the county where the work was done or materials furnished, at any time within ■one year from the completion of the work or furnishing the materials or if a credit be given, from the expiration of the credit.” — 175 — No credit appears to have been given in this case, which should have been shown had any been given. We construe the language of the above statute, “at any time within one year from the completion of the work,” as meaning at any time within one year from the completion of the work for which the party claims the lien, and not within one year from the time the entire building may be completed. Persons furnishing materials for, or performing labor upon, a building, may have a lien, though furnished not to the owner, but to his contractor. Colter v. Frese, 45 Ind. 96. In perhaps a majority of cases, the owner contracts with different persons to furnish the labor or materials, or both, for the different parts of a building. Thus, the stone-mason may perform a part, the brick-mason a part, and the carpenter and joiner a part; while the tinner, plasterer, paper-hanger and painter may each perform such parts as come within his peculiar line of business. Each person doing work or furnishing materials may have his lien. And it seems to be clear that the Legislature intended in all such cases that the action to enforce the lien should be brought within a year from the time when such persons respectively completed their work, or furnished the materials, where no credit was given. In other cases, the owner contracts with the builder for the construction of an entire building; and in such case the contractor has a year from the time the building is completed within which to bring his action to enforce the lien, for in such case, until the building is completed, his work is not done. Some obscurity exists in the statute growing out of the peculiar language of section 650, providing how the lien shall be acquired. It provides that “Any person wishing to acquire such lien upon any property, whether his claim be due or not, shall hie in the recorder’s office of the county, within sixty days after the completion of the building or repairs, — 176 — notice of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth the amount claimed,” etc. The language seems to have peculiar reference to liens to be acquired by persons completing an entire building, or making repairs. We do not think, however, that it was intended by the legislature that a person doing some work only on a new building, and not constructing the entire building, or furnishing some of the materials only, might acquire a lien by filing his notice within sixty days after the completion of the building, where that period extends beyond sixty days-from the time his work was completed, or his materials were furnished. If he could do so, he might, in many cases, acquire a lien years after his work was done, or his materials, were furnished. Such a construction would enable one to acquire a lien years after the time when the action is required to be brought to enforce it, as provided for by section 651. This would follow, unless, indeed, we could hold that by section 651 persons furnishing work or materials for a part, and not for the entire building, could bring their action to enforce their lien at any time within a year after the entire completion of the building, though that might be more than a year after their work was done or their materials furnished. The section does not admit of such construction. Taking the several provisions of the statute together, and construing them, as far as possible, so as to make a consistent whole, we think the following propositions may be deduced from them as the intent of the Legislature upon the point here involved: 1st. Where a person builds a complete and entire building for another, whether he furnishes the materials or otherwise, he may acquire a lien by filing his notice within sixty days after the completion of the building; and he may, of — 177 — course, bring his action to enforce the lien at any time within a year from the completion of the building, for, until its completion, his work is not done. 2d. Where one performs work on, or furnishes materials for, a part only of a building, he must file his notice of intention to hold a lien within sixty days from the completion of his work or the furnishing of materials, and must bring his action to enforce it within a year from the completion of his work or the furnishing of the materials, unless» credit be given. In this case the irresistible inference from the items set out in the notice of the lien is, that the work done and the materials furnished were not sufficient to embrace the entire construction of the building. Indeed, the notice of the lien does not purport to be for the entire construction of the building, but only for certain days’ labor and specified materials. The action was brought too late. The judgment below is affirmed, with costs. Petition for a rehearing overruled.