In re Shute

NETERER, District Judge. This is a petition to review the order of the referee denying the claim of lien on the part of petitioner. It appears that the petitioner contracted with the bankrupt to furnish labor and materials for putting in certain chain and railing in the place of business of the bankrupt. While this work was in progress the bankrupt contracted with one Kitak to furnish labor and materials for the construction of 36 tables. Kitak did not have the materials or credit to obtain them, and the bankrupt agreed with the petitioner that, if he would furnish the material, the bankrupt would pay him direct therefor. The petitioner furnished the material for the tables, which were constructed at the place of business of Kitak. Upon the completion of the chain and railing, and also on the completion of the [545] tables, the petitioner, pursuant to sections 1154 and 1155, Rem. & Bal. Code Wash., filed a claim for lien upon the several articles as constructed under one contract, for a total of $181.32. The referee denied the right of lien, but allowed a general claim against the estate for the amount due, $149.90. [1] The decision of the referee is unquestionably right. The labor and material was furnished under two distinct contracts, entered into at different times, and between different parties. The contention of the petitioner that since the labor and materials were furnished to the same person, by the same person, at practically the same time, upon the same premises, under the liberal construction which should be given to the lien statutes of this state (section 1209, supra), the lien should be held valid, cannot be sustained. The cases cited, Wheeler, Osgood & Co. v. Ralph, 4 Wash. 617, 30 Pac. 709, and Seattle Lumber Co. v. Sweeney, 33 Wash. 691, 74 Pac. 1001, do not sustain such position. These were both suits under the general lien statute, in which a number of buildings were constructed upon contiguous lots, under one contract, but between the same owner and the same contractors, the materials being used indiscriminately in all of the houses, and there were no intervening rights of third parties, and the court rightly held that it was not vital to the lien under the circumstances that the materials in each building were not separately designated in the lien. In the instant case the labor and materials were furnished under separate contracts, for the construction of separate groups of chattels. [2] Nor is there any question as to the trustee’s right to attack the validity of the lien, since section 47a(2) of the Bankruptcy Act, as amended in 1910, vests the title to all property of the bankrupt in the trustee, with all the rights, remedies, and powers of a person holding a lien by legal or equitable proceedings thereon. “The status oí the general creditors by such act was changed, and by operation of law a lien was created and established in favor of the trustee for the general creditors.” In re Pacific Electric Automobile Co., 221 Fed. 220, 224. The order of the referee is affirmed. Footnotes [1] other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes