Spafford v. Duluth, Red Wing & Southern Railroad

Dickinson, J. Prior to the léth of September, 1888, the defendant railroad company had entered into a contract with the Bed Wing, Duluth & Sioux City Construction Company to the effect that the latter — the construction company — should construct the line of railway, including bridges and culverts; and thereafter the construction com [520] panv bad entered into a subcontract with the partnership firm of Keating Bros. & Co., to the effect that the latter firm should construct the same line of road, including bridges and culverts. On the 14th of September, 1888, Keating Bros. & Co. sublet to the plaintiff the ■work of constructing and furnishing material for the bridges and culverts on a part of the line of road. This action is to enforce a lien which the plaintiff claims to have acquired upon the railroad by the performance of this subcontract, to the extent of an unpaid part of the price which, by the terms of the contract between Keating Bros. & Co. and the plaintiff, the latter was to receive. The plaintiff’s contract was not with the railroad, whose property he seeks to subject to a lien, nor directly with the party originally contracting with the railroad company; and the question arises whether 1878 G. S. ch. 90, § 1, as amended, by Laws 1874, eh. 69, authorizes a lien in such eases. Prior to that amendment, the statute did not provide for liens in favor of subcontractors; but this act of 1874 added the following provision to section, one (1) of the lien law then in force: “Whoever furnishes any labor, skill, or material for constructing, altering, or repairing any line of railway, or for constructing, altering, or repairing any bridge, telegraph, depot, fences, or other structure appertaining to any line of railway, by virtue of any- contract with the owner, or with any party authorized by the owner of such line of railway, or by virtue of any subcontract with any original contractor with such owner, or with such authorized party, shall have a lien to secure the payment for such labor, skill, and material upon all such line of railway,” etc. No doubt can be entertained that it was intended by the amendment of 1874 to extend the right of lien to subcontractors contributing labor or material for the construction of railways. It is the opinion of the majority of the court that the law was intended to apply to subcontractors generally, and not merely to those standing in direct contract relation with the first or original contractor. In support of this construction of the statute, we may cite Mundt v. Sheboygan & F. du L. R. Co., 31 Wis. 451, and Lumbard v. Syracuse, B. & N. Y. R. Co., 64 Barb. 609. But, speaking for myself, I will say that, in my opinion, the language of the law of 1874 is so restricted [521] that the right of lien created by it should not be regarded as extending beyond subcontractors in the first degree, — those standing in immediate contract relation with the first or original contractor. Applying the construction which the court puts upon the statute to such facts found as are established by evidence of unquestionable propriety, it follows that the plaintiff was entitled to the lien. It is immaterial whether or not the court was justified by the evidence in finding that the subcontract between Keating Bros. & Co. and the plaintiff was made with the consent of the defendant railroad company. When the defendant contracted for the construction of its road, under a statute giving a right to a lien, not only to the contractor, but to subcontractors, it, in effect, consented to a subcontracting, at least, in the absence of any stipulation to the contrary in its contract. Many assignments of error are made, which are not again referred to in the appellant’s brief. We therefore pay no attention to them. Order affirmed. (Opinion published 51 N. W. Rep. 469.)