Milner v. Norris

Berry, J. By the Gowrt The referee has found in this ease that on the 24th day of July, 1865, McCargar and the plaintiffs entered into a contract whereby “plaintiffs agreed to cut from their own materials and furnish to the said Mc-Carger all the cut stone required” for a building, (which McOargar contemplated erecting) according to the architect’s plans and specifications, and that McCargar in consideration thereof promised to pay the plaintiffs what the same should be reasonably worth, “payments to -be made from time to time as the work under said contract progressed.” Clearly this was one contract, and it was the only contract under which the materials were furnished, and under which payments were to be made as the work progressed. Neither the plaintiffs nor McCargar were at liberty to repudiate it at-pleasure, at any stage of its performance. “ Whoever performs labor or furnishes materials * * for erecting * * any building, * * by virtue of a contract or agreement with the owner * * thereof, shall have a lien,” &c. G. S., Ch. 90, p. 589. The statute gives the lien irrespective of the fact that the contract may be to furnish distinct items of material or perform distinct items of labor to be paid for as the work progresses. The contract between plaintiffs ■ and McOargar was made and partially performed' before the mortgage to defendant Norris was executed, and the building was in process of construction and the contract in process of performance at the time of the execution of the mortgage. In other words prior to the execution of the mortgage the plaintiffs had commenced to perform the labor and furnish the materials contracted for. The fact that some part of the materials was furnished and used in the building after the execution of the mortgage is then not important, because by Sec. 7 of Chap. 90, G. S., the [458] filing of an acccount as there provided “ operates as a lien ” “ from the commencement of such labor or the furnishing of such materials,” that is to say from the commencement of the labor performed and materials furnished wider the contract or agreement before spoken of. Neither is it important that some portions of the material furnished were not put into the building until after the account was filed. All the materials are found, to have been furnished before the filing of the account, and it is for materials furnished for erecting a building that the statute secures a lien. If this were'not so the lien law would be valueless in many cases. Ve think the last objection made by’appellants that the judgment is erroneous in barring all claims of appellants without reserving a right of redemption is not substantial. The statute gives the redemption ; it is not in the power of the court to deny it, and it is expressly and. repeatedly recognized in the judgment itself. Order and judgment affirmed.