Cole Manufacturing Co. v. Falls

Caldwell, J. This is a hill to enforce an alleged furnisher’s lien, under Chapter 108, Acts of 1889. The cause is in this Court for the second time, having been here originally on demurrer, impeaching the constitutionality of the Act (90 Tenn., 468), and coming up now on appeal from decree dismissing the bill on the merits. On final hearing it was shown, under proper pleadings, that defendant, Tails, as owner, contracted with one Kempe, as original contractor, to make certain improvements upon a lot of ground in the city of Memphis; that complainant, under contract with Kempe, furnished certain materials, which he used in making those improvements, and for which he failed to make payment; that complainant thereupon gave Falls notice of its intention to 'claim a lien upon the property improved, and, within ninety days thereafter, filed this bill to enforce the lien. The Chancellor was of opinion, . and adjudged, that the notice was not given at such time as to fix a lien upon the property; and, for that and other reasons, he dismissed the bill. Complainant’s contract with Kempe expired on the eighteenth of December, 1889, that being the day on which it furnished the last of the materials it was employed to furnish. The notice was given on the twenty-eighth of February, 1890, and the improvements were, completed on the twenty-fourth of March, 1890. Notice, otherwise good, has been held sufficient — 609 — to perfect the furnisher’s lien, under the Act of 1889, if given within thirty days after the expiration of his contract (Bassett & Clapp v. Bertorelli, ante, p. 548), or within thirty days after the completion of the improvements (Green v. Williams, ante, p. 220); hut the case at bar does not come within either of those decisions, because the notice here i.n question, as already seen, was given seventy days after the expiration of -complainant’s contract, and twenty-four days before the completion of the improvements. Was a notice, given at such a time, efficacious to perfect complainant’s inchoate lien? The provision of Section 1, Chapter 103, Acts of 1889, is that a subcontractor, employed by the original contractor to perform labor or furnish materials, shall have a lien, provided he give notice of an intention to claim it within thirty days after the building is completed, or his contract shall expire, or he be discharged. The period in which the notice before us was given is not embraced in that provision. The notice was not given within thirty days after the expiration of complainant’s contract, nor within thirty days after the building was completed, nor within thirty days after complainant was discharged; for complainant was not discharged at all, and the notice was given seventy days after the expiration of its contract, and twenty-four days before the completion of the building. But it is contended on behalf of complainant — 610 — that prior Acts embrace the period within which the notice in this ease was given; and that, when all the Acts are considered together, as it is insisted they should be, it becomes entirely clear that the subcontractor is authorized to give notice at any time between the inception of his contract and the expiration of thirty days after the completion of the building. The second section, of Chapter 118, Acts of 1845-6, gave the subcontractor a lien, on condition that he should give the owner of the property notice of his intention to rely upon it at the time he began to work or furnish materials. Code, § 1986. That provision wTas amended by Section 2, Chapter 67, Acts of 1881, so as to authorize the notice to be given when the subcontractor began to work or furnish materials, or during the progress of the work, or after its completion, and before the contractor has been paid. Code (M. & V.), § 2746. Such was the state of the law on this subject when the Act of 1889 was passed. Hence, if the provision of that Act with respect to notice, is to be taken as but an enlargement of previous legislation, as was that of the Act of 1881, there can be no doubt that the present law (See. 1, Ch. 103, Acts 1889), so enlarged, gives all the scope contended for by counsel of complainant, and authorizes the subcontractor to give notice at any time from the commencement of his contract to the end of thirty days after the completion of the building. — 611 — But we do not so understand that provision of the Act of 1889. It was not a mere enlargement of the law previously existing, but an actual substitute for it. The amendment made by the Act of 1881 was by addition, but the amendment made by the Act of 1889 was by substitution. This is obvious from the language of the respective Acts. The original provision of the Act of 1845-6, as carried into the Code, is as follows: “ Every journeyman, or other person employed by such mechanic, founder, or machinist to work on the building, fixture, machinery, or improvement, or to furnish materials for the same, shall have this lien for his -work or materials, if, at the time he begins to work, or furnishes the materials, he noti-. fies' the owner of the property, in writing, of his intention to rely upon the lien.” Code, § 1986. The Act of 1881 provides: “ That § 1986 of the Code be, and is hereby, amended by adding thereto the following, viz: Such person shall also have a lieu, if such- written notice is served on the owner during the progress of the work, or after its completion, and before the contractor has been been paid.” Acts 1881, Ch. 67, Sec. 2; Code (M. & V.), § 2746. The Act of 1889 provides: “ That Section 2 of the Act. of the Legislature of 1881, Chapter 67, above referred to in this caption, shall be amended so as to read as follows, viz.: ‘Every journeyman, or other person, employed by such mechanic, — 612 — founder, or machinist to work on the buildings, fixtures, machinery, or improvements, or to furnish material for the same, shall have this lien for his work or material;’ Provided, That within thirty days after the building is completed or the contract. of such laborer, mechanic, or workman shall expire, or he b.e discharged, he or they shall notify, in writing, the owner of the property on which the building or improvement is being made, * * * that said lien i.s claimed.” Acts 1889,-Ch. 103, Sec. 1. That the Legislature intended this last provision to stand in the place of all former legislation on the particular subject then in hand, with the modifications therein made, is unmistakably manifested by the introductory words, declaring that the previously existing law “ shall be amended so as to read as follows,” and also by the further fact that the language following that declaration covers the whole subject embraced in the amended law. It is a clear case of amendment by substitution and repeal by implication. Terrell v. State, 86 Tenn., 523; Poe v. State, 85 Tenn., 495; The Druggist Cases, Ib., 450. When this case was here at a former term, it was held that the previous Act% on this subject were “ amended and superseded by the first section of the Act of 1889.” ' 90 Tenn., 471. It may be suggested that the last provision was obviously intended to better the situation of the — 613 — subcontractor, and that, therefore, greater scope should be now allowed with respect to the time within which he may give notice. The provision was intended to benefit the subcontractor, beyond question; and it so operates. But it does not follow that greater latitude was intended as to the time in which notice might be given. The truth is, that the law in that particular was somewhat narrowed by the Act of 1889; but the subcontractor was, at the same time, given a greater advantage, in that his lien was declared no longer dependent upon the question as to whether or not the owner had paid the contractor in full when the requisite notice should be given. Reeves v. Henderson, 90 Tenn., 521; Bassett & Clapp v. Bertorelli, ante, p. 548. Since the notice before us was not given at such time as to perfect complainant’s lien, in whatever form it may have been, it is not necessary that its sufficiency or insufficiency as to identification of the property on which the lien was claimed should be decided. The questions of estoppel and personal liability of Balls for complainant’s debt will be disposed of orally. Affirm, with costs.