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1. How Assignments Made.-No particular words are necessary

Chicago etc. R. Co. v. Sturgis, 44 Mich. 538; Tuttle v. Howe, 14 Minn. 145. See Iaege v. Bossieux, 15 Gratt. (Va.) 83; Davis v. Bilsland, 18 Wall. (U. S.) 659. See also Hull of New Ship, Davies 199; The Sarah J. Weed, 2 Lowell 556; Rogers v. Omaha Hotel Co., Neb. 54; Brown v. Smith, 55 Iowa 31; German Bank v. Schloth, 59 Iowa 316; Mason v. Germaine, 1 Mont. 263; Major v. Collins, 11 Ill. App. 658; Lauer v. Dunn (N. Y.), 22 N. E. Rep. 270.

The right of lien may pass by assignment to the remaining partners of a firm on dissolution. Busfield v. Wheeler, 14 Allen (Mass.) 139; Westervelt v. Levy, 2 Duer (N. Y.) 354; Hubbell v. Schreyer, 14 Abb. (N. Y.) Pr., N. S. 284; German Bank v. Schloth, 59 Iowa 316; Brown v. Smith, 55 Iowa 31.

A lien for services in building a vessel cannot be assigned so that it can be enforced in the name of the assignee. And where a man joined in one suit a lien claim of his own with the lien claim of another which had been assigned to him, and took judgment for both, the court held that he thereby lost the lien to which he was entitled for his own services. Pearsons v. Tincker, 36 Me. 384.

When Petition Shows an Assignment. -The mere bringing of a suit to enforce a mechanics' lien for the use of another is not tantamount to an averment of an assignment of the claim to such person, so as properly to present the question whether the lien is assignable. Barstow v. McLachlen, 99 Ill. 641.

In Illinois, a mechanics' lien is so far a personal right that the proceeding to establish it even if it has been assigned should be carried on in the name of the

assignor. Phoenix Mut. Ins. Co. v. Batchen, 6 Ill. App. 621.

In Cairo etc. R. Co. v. Fackney, 78 Ill. 116, 119, it was held that a mechanics' lien upon a railroad was not assignable at law, and if assignable, it would not entitle the holder of the same to assign the lien.

In California, the lien passes by transfer of account, provided account is in writing. Ritter v. Stevenson, 7 Cal. 388.

In Iowa, the lien must be perfected in order to be assigned. The mere right to a mechanics' lien before the lien has

been perfected by the filing of the claim is not assignable. Langan v. Sankey, 55 Iowa 52; Brown v. Smith, 55 Iowa 31.

In Maine, a lien claim which has been assigned may be enforced in the name of the assignor. Murphy v. Adams, 71 Me. 113, 119. It cannot be enforced in the name of the assignee. Pearsons v. Tincker, 36 Me. 384, 387.

In Massachusetts, where a copartnership to which a lien has accrued for work done and money expended upon machinery is dissolved, and the interest in the lien assigned to one partner, the lien is not lost, but may be enforced by such partner in the firm name. Busfield. Wheeler, 14 Allen⚫ (Mass.) 139.

In Minnesota, a mechanics' lien may be assigned and the assignee may enforce it in his own name. Tuttle v. Howe, 14 Minn. 145.

In Nebraska, it has been decided that unless prohibited, a mechanics' lien is assignable, and the assignee thereof may maintain an action to foreclose the lien. Rogers v. Omaha Hotel Co., 4 Neb. 54.

In Montana, the lien of a mechanic for labor that has been performed follows the assignment of the account of the labor. Mason v. Germaine, Mont. 263.

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In New York, the lien given by the statute is in general a personal right given to the mechanic, material-man and laborer for his own personal protection, and an assignee of his claim is not authorized to file a lien, unless such assignment is for the benefit of the assignor to be held as by his agent so that the lien may be preserved. Rollins v. Cross, 45 N. Y. 766. See Hubbell v. Schreyer, 14 Abb. (N. Y.) Pr., N. S. 284.

In Nevada, mechanics' liens are assignable, and may be enforced by an action in the name of the assignee. Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219, 220.

In Wisconsin, the lien of the mechanic, lumberman, etc., for work and materials is a personal right, and cannot be transferred or assigned so as to enable the assignee to prosecute the claim in his own name and avail himself of the benefit of the lien given against the building. Caldwell v. Lawrence, 10 Wis. 331.

to constitute an assignment of a debt; it is sufficient if the intent of the parties to effect an assignment be clearly established.1

XIII. WAIVER OF LIEN.-The right to a mechanics' lien for labor or materials furnished for the erection or repair of a building may be waived by an agreement either express or implied.2 It may be waived by the material-man directing the owner to pay the contractor money withheld from the latter for the materialman's use.3

Waiver of Lien by Contractor.--Where a contractor waives a mechanics' lien, none can exist in favor of subcontractor with knowledge of the contract.

1. Special Agreement. If the parties interpose a special contract inconsistent with the existence of a lien, the lien will be waived. A mechanics' lien, like many other liens which courts are

1. Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219.

Where an assignment was endorsed on a mechanics' lien as follows: For value and in consideration of the sum of one dollar in hand paid by Wm. Skyrme, the receipt whereof is hereby acknowledged, I do sell, assign, transfer and set over to said Wm. Skyrme the within lien and all my rights thereunder. Held, that the language used was broad enough to include the debt secured by the lien. Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219,

220.

In Ritter v. Stevenson, 7 Cal. 388, it was held that a mechanics' lien can only be assigned in writing.

Where the plaintiff's claims against the railroad company were based upon orders drawn by a subcontractor upon plaintiff in favor of a laborer, these orders did not constitute an assignment of the claim of the laborer for the amount due him from the subcontractor. Dudley v. Toledo R. Co., 65 Mich. 655; s. c., 30 Am. & Eng. R. Cas. 236.

2. Scheid v. Rapp, 121 Pa. 593; Iron Co. v. Murray, 38 Ohio St. 323; Bailey v. Adams, 14 Wend. (N. Y.) 201; Bowen v. Aubrey, 22 Cal. 566; Benedict v. Danbury etc. R. Co., 24 Conn. 320; Long v. Čaffrey, 1 Luzerne Leg. Reg. Rep. 188; Long v. Caffrey, 93 Pa. St. 526; Chambers v. Mc Dowell, 4 Ga. 185; Clarke v. Moore, 64 Ill. 273, 275; McLaughlin v. Reinhart, 54 Md.

71.

A mechanic furnishing material for the construction of a mill, under a contract with the owner, may, by his agree

ment as to the manner of payment, and his acts with respect to the claims of other creditors, be precluded from asserting à mechanics' lien, as against such creditors, although he has made no express promise that he will not assert such lien. West v. Klotz, 37 Ohio St. 420.

Where a mechanic, before commencing work upon a building in course of construction, agrees with the owner that he would look only to the contractor for his pay, he thereby waives any right which the law might otherwise have given him to a lien upon such building. Murray v. Earle, 13 S. Car. 87.

The owner of a building subject to a mechanics' lien in favor of A cannot waive a compliance on the part of B, with any of the statutory requisites for creating such a lien; and thus or by any admission or agreement, give B a lien to which he is not entitled by law to the prejudice of A. White v. Washington School Dist., 42 Conn. 541, 545. 3. Rand v. Grubbs, 26 Mo. App. 591. Bowen v. Aubrey, 22 Cal. 566.

4.

5. Willison v. Douglas, 66 Md. 99; Crawshay v. Homfray, 4 Barn. & Ald. 53; Steamboat Charlotte v. Hammond, Mo. 59; Emerson v. Steamboat Shawano City, 10 Wis. 433; The Highlander, 4 Blatchf. 55; Barrows Baughman, 9 Mich. 213. See Peck v. Bridwell, 10 Mo. App. 524; Barker v. Berry, 4 Mo. App. 584; Pinning v. Skipper (Md.), 18 Atl. Rep. 659.

V.

Retention by a seller of title to machinery placed on land until the price is paid, with a reservation of the right, in case of default in payment, to take

called upon to enforce, is not created by contract. It is brought into operation by the established law of the land, and, in the absence of special arrangements to the contrary, parties are presumed to have contracted for work and materials with reference to this law.2 But no statute will be so construed as to prohibit the formation of contracts not in conflict with public policy. If parties deem it advisable to enter into an agreement inconsistent with the existence of a lien, the statute will not be construed to operate so as to create a lien and thereby destroy the special contract.3 So where a party goes security for a contractor that no lien shall accrue against a building, the contractor is not entitled to a mechanics' lien unless the surety is discharged.4

2. Taking Promissory Note.--The acceptance of a promissory note is not a waiver of a mechanics' lien.5 It does not waive a

possession of and remove such machinery without process, is not a waiver of the lien given by Code Tenn., § 2739, on any lot of ground for the price of machinery furnished or erected thereon. Case Mfg. Co. v. Smith, 40 Fed. Rep. 339.

1. Willison v. Douglas, 66 Md. 99; Reindollar v. Flickinger, 59 Md. 469; Wehr v. Shryock, 55 Md. 334; Frost v. Ilsley, 54 Me. 345, 351; Chambersburgh Mfg. Co. v. Hazelet, 3 Brewst. (Pa.) 98; Ehler's Admr. v. Elder, 51 Miss. 495; Childs . Anderson, 128 Mass. 108; Freeman v. Cram, 3 N. Y. 305; McCay's Appeal, 37 Pa. St. 125; Copeland v. Kehoe, 67 Ala. 594; Barnard v. McKenzie, 4 Colo. 251; Shackleford v. Beck, 8o Va. 573.

2. Sodini v. Winter, 32 Md. 130; McLaughlin v. Reinhart, 54 Md. 71; Fritch v. Norton, 10 Colo. 337; Bruce v. Berg, 8 Mo. App. 204; Leddo v. Hughes, 15 Ill. 41; Roach v. Chapin, 27 Ill. 194.

3. Willison v. Douglas, 66 Md. 99; Pickett v. Bullock, 52 N. H. 354. 4. German etc. Congregation v. Heise, 44 Md. 453.

5. Aiken v. Steamboat Fannie Barker, 40 Mo. 257; Bayard v. McGraw, I Ill. App. 134; Bashor v. Nordyke & Marmon Co., 25 Kan. 155; Steamboat Charlotte v. Kingsland. 9 Mo. 67; Clement v. Newton, 78 Ill. 427; Morrison v. Steamboat Laura, 40 Mo. 260; Doane v. Clinton, 2 Utah 417; Bailey V. Hull, 11 Wis. 289; Wheeler v. Schroeder, 4 R. I. 383; Finch v. Redding, 4 B. Mon. (Ky.) S7. See Carter v. Townsend, 1 Cliff. (U. S.) 1; Hawley v. Warde, 4 Greene (Iowa) 36; Scott v. Ward, 4 Greene (Iowa) 112; Kinsley v. Buchanan, 5 Watts (Pa.) 118; Jones

v. Shawhan, 4 W. & S. (Pa.) 257; Johns v. Bolton, 12 Pa. St. 339; Odd Fellows' Hall v. Masser, 24 Pa. St. 507; Fisher v. Rush, 71 Pa. St. 40; s. c., 8 Phila. 44; Herron v. Graham, 24 Pittsb. L. J. (Pa.) 50; s. c., 3 W. N. C. (Pa.) 176. But see Crooks v. Finney, 39 Ohio St. 57; Ashdown v. Woods, 31 Mo. 465; Green v. Fox, 7 Allen (Mass.) 85; Merrick v. Avery, 14 Ark. 370; Edwards v. Derrickson, 28 N. J. L. 29; Dey v. Anderson, 39 N. J. L. 199; Logan v. Attix, 7 Iowa 77; Brady v. Anderson, 24 Ill. 110; Mix v. Ely, 2 Greene (Iowa) 513; Greene v. Ely, 2 Greene (Iowa) 508; Milwain v. Sanford, 3 Minn. 147; Gere v. Cushing, 5 Bush (Ky.) 304.

A mechanics' lien for work done is not waived by taking his employer's note for the money due for the work, and giving a receipt in full for such money, the note not being paid. Goble v. Gale, 7 Blackf. (Ind.) 218.

The fact that the note is on interest is immaterial, for the mechanic is entitled to interest on general principles, and the statute does not forbid it. Brady v. Anderson, 24 Ill. 110; Vason v. Bell, 53 Ga. 416.

Though the note is payable after the expiration of the time limited by law in which the lien must be filed, yet the lien is not waived if it be payable before the time in which an action must be brought for its enforcement; for the mechanic is allowed to file the lien before his note has fallen due. Ashdown v. Woods, 31 Mo. 465; McMurray v. Taylor, 30 Mo. 263; Miller v. Moore, 1 E. D. Šmith (N. Ÿ.) 739; Schmidt v. Gilson, 14 Wis. 514.

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Accepting from the contractor note including sums due on other ac

mechanics' lien, although the note may have been discounted at the bank, if the note can be delivered up at the trial, and the payee may prosecute the suit to the use of his assignee.1

3. Negotiating Note.-Negotiation suspends the right of the mechanic to sue until the note is returned to him unpaid, but not the right to file the notice of lien.2

counts, the specific remedy against the property cannot be enforced. The Owner will not be subjected to the burden of enquiring into the state of the account between them. Schulenburg v. Robison, Mo. App. 561.

In New York, taking the contractor's note is not a waiver of the lien; but it cannot be enforced until the credit has expired; nor then, if the statutory limitation of twelve months has run against it. Miller v. Moore, 1 E. D. Smith (N. Y.) 739; s. c., 12 N. Y. Leg. Obs. 53; Althause v. Warren, 2 E. Ď. Smith (N. Y.) 657; Lutz v. Ey, 3 E. D. Smith (N. Y.) 621; s. c., Abb. Pr. (N. Y.) 475. See Ehlers v. Elder, 51 Miss. 495.

In Green v. Fox, it was held that a mechanics' lien is waived if, before any money becomes due to him under the contract, he accepts on account thereof the negotiable promissory notes of his employer for the amount, payable after the time when the money would become due and his right to file a petition to enforce his lien would expire, and actually negotiates the same, and there is no evidence of the actual intent of the parties in giving and receiving them; and the fact that he afterwards takes them up and offers to surrender them in court is immaterial. See Dey v. Anderson, 39 N. J. L. 199.

Failure to Return Note.-The fact that a party, seeking to enforce a mechanics' lien, took the note of the person for whom the work was done for the work and traded it off, and the note

was

not produced on the trial and offered to be surrendered, nor any excuse shown for its nonproduction, would warrant a judgment for the defendant. Clement v. Newton, 78 Ill. 427. The reason of this rule is that if an action may be maintained for the original debt, the debtor may also be sued by an innocent endorsee of the bill or note, and thus be compelled to pay the debt a second time. See Steamboat Charlotte v. Lumm, 9 Mo. 64; Morrison v. The Laura, 40 Mo. 263; Clement v. Newton, 78 Ill. 427; Carter

v. Townsend, 1 Cliff. (U. S.) 1. But see Hill v. Meyer, 47 Mo. 585.

In a proceeding by a material-man to enforce a lien under the "act for the better security of mechanics," etc., it appeared that the claimant had received the note of the contractor for the amount of his claim, and had passed the note away receiving from the endorsee the amount thereof, and such endorsee had recovered a judgment thereon against the contractor, which judgment remained in full force and unsatisfied. Held, 1, that the claimant could not recover without showing that he had by payment to the endorsee, or otherwise, become reinvested with the title to the debt; 2. That the mere production of the note on the trial was not sufficient. The plaintiff must produce proof which furnishes an assurance to the contractor that payment to the claimant in satisfaction of the lien would be a protection to him against the apparent title of the judgment creditor to collect the same debt by means of the judgment. Teaz V. Chrystie, 2 Abb. (N. Y.) Pr. 109.

1. Clement v. Newton, 78 Ill. 427. See Kankakee Coal Co. v. Crane Bros. Mfg. Co., 128 Ill. 627.

2. Morton v. Austin, 12 Cush. (Mass.) 389; Teaz v. Chrystie, 2 Abb. Pr. (N. Y.) 109; Sweet 7. James, 2 R. I. 270; Rush v. Fisher, 8 Phila. 44; Clement v. Newton, 78 Ill. 427. Compare Steamboat Charlotte v. Kingsland, 9 Mo. 67.

The transfer of a promissory note is no waiver of the lien unless it is taken in payment of the account. Smith v. Johnson, 2 MacArthur (D. C.) 481.

In Scott v. Ward, 4 Greene (Iowa) 112, it was held that the acceptance of a note is not a waiver of a mechanics' lien; but if such note should be actually negotiated the lien would be lost.

But a mere attempt to negotiate a note on which a lien might be established does not amount to a waiver of such lien. Hawley v. Warde, 4 Greene (Iowa) 36.

A note given on a claim which would authorize a mechanics' lien was en

4. When Note Is Dishonored. When a promissory note has been given for part of the debt for which a mechanic's claim has been filed, the amount may be recovered by the claimant who holds the note which has been dishonored.1

5. Extending Credit Beyond Statutory Period for Enforcing Lien.— If claimants chose to give so extended a credit that no action could be maintained until after the time during which a lien could be secured had elapsed, they must be deemed to have voluntarily waived their lien and retired upon the personal security of the parties to whom credit was given.2

6. Accepting Mortgage Security.-The mechanics' lien of the material-man may be waived by his agreement to accept mortgage security.3

dorsed by the payee in blank. Held,
that if the endorsement indicated the
belief that the note had negotiated the
plaintiff, the plaintiff should be per-
mitted to prove the contrary. Scott v.
Ward, 4 Greene (Iowa) 112.
1. Johns v. Bolton, 12 Pa. St. (2 Jones)
339.

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2. Paul v. Frost, 40 Me. 293; Mehan v. Thompson, 71 Me. 492; Ehlers Admr. . Elder, 51 Miss. 495, 496; Pryor v. White, 16 B. Mon. (Ky.) 605; Dey v. Anderson, 39 N. J. L. 199; Emerson v. Steamboat Shawano City, to Wis. 433; Steamboat Charlotte Hammond, 9 Mo. 58; The Highlander, 4 Blatch. (U. S.) 55; Hill v. Witmer, 2 Phila. (Pa.) 72; Jones v. Hurst, 67 Mo. 568; Bailey v. Hull, 11 Wis. 289. See Ashdown v. Woods, 31 Mo. 465; Presbyterian Church v. Allison, 10 Pa. St. 413; Schmidt v. Gibson, 14 Wis. 514.

A mechanics' lien is waived if before any money becomes due to him under contract he accepts on account thereof the negotiable promissory notes of his employer for the amount payable after the time when the money would become due and his right to file a petition to enforce his lien would expire, and actually negotiates the same, and there is no evidence of the actual intent of the parties in giving and receiving them; and the fact that he afterwards takes them up and offers to surrender them in court, is immaterial. Green v. Fox, 7 Allen (Mass.) 85.

The acceptance of a note payable at a future day by a creditor claiming the lien, is an abandonment of the lien, if by the terms of the note the time of the payment has been extended beyond the date as fixed by the original debt, but if the note conforms to the terms of the original contract of lien or purchase,

then the note is but a memorial of such contract and the statute begins to run from its maturity. Ehlers Admr. v. Elder, 51 Miss. 495, 496.

An agreement to extend the time of payment beyond a year, provided a mortgage should be given, will not defeat a mechanics' lien if the mortgage should not be executed. The giving of the mortgage was a condition precedent. Gardner v. Hall, 29 III. 277.

Agreement for credit beyond time within which liens can be enforced does not affect lien when purchaser fails to perform condition on which credit was given. Chicago etc. R. Co. v. Union Rolling Mill Co., 109 U. S. 702; s. c., 16 Am. & Eng. R. Cas. 626.

In Wisconsin, the taking of a debtor's promissory note for the amount of the debt merely suspends the creditor's right of action on the original debt until the note becomes due; and § 5, ch. 113, of 1859 (Tay. Stat., 764, § 10), expressly provides that the taking of such a note by a mechanic or material-man shall not be deemed a waiver of his right to perfect his lien. White v. Dumpke, 45

Wis. 454:

3. Willison v. Douglas, 66 Md. 99; see Gardner v. Hall, 29 Ill. 277; Trullinger v. Kofoed, 7 Oreg. 228; Weaver v. Demuth, 40 N. J. L. 238; Spence v. Etter, 3 Eng. (8 Ark.) 69; Kinzey v. Thomas, 28 Ill. 502; Gorman v. Sagner, 22 Mo. 137; see Peck v. Bridwell, 10

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Mo. App. 524.. Compare Parberry v.
Johnson, 51 Miss. 291; Roberts
Wilcoxson, 36 Ark. 355.

The acceptance of a mortgage, for the same debt upon the same property, covered by a mechanics' lien, is not collateral security within the meaning of the Iowa statute and will not divest it, unless the lien holder evinces an inten

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