be entitled to a lien on the building. And if every one who contributed indirectly and remotely to the work is entitled to a lien, no reason is perceived why a surgeon called to set a broken limb of one of the laborers, whereby he will be enabled at an early day to resume work on the building, might not assert a lien; but services of this character, not performed on the building, are not within the province of the

statute.

In Dixon v. Blanchard, 1 E. D. Smith (N. Y) 722, it was held that under a statute conferring a lien on any materials furnished for building, a person supplying a hoisting apparatus necessary for and used in the construction of a building had a lien for the price. Where a building contract requires rock upon land to be blasted and removed preparatory to building, powder and fuses supplied to the contractor and necessarily used for that purpose, come within the term "materials in building" within the meaning of the New York lien law of 1851. Hazard Powder Co. v. Byrnes, 12 Abb. Pr. (N. Y.) 469; 21 How. Pr. (N. Y.) 189. In the official report of Vandergrift & Forman's Appeal, 83 Pa. St. 126, the syllabus is in the following terms: "One who contracts to drill an oil well and to furnish the tools, ropes, etc., to be used in the drilling, can file a mechanics' lien against the well for the work so done and the materials furnished under the provisions of the second statute of the act of the 7th of March, 1872." In Phillips on Mechanics' Liens, § 162a, treating of "When lien exists for machinery, etc.," this case is cited, and it might be inferred that it is cited in support of the proposition that the contractor was held to be entitled to a lien for tools, ropes, etc., supplied. The syllabus above quoted

would also bear the same construction, An examination of the case, however, shows that no such decision was rendered by the court. The section conferring the lien is in the following terms: "All persons dcing work for, on or about the erec'ion, construction, or repair of any engine, engine-house, tanks, derrick, building, machinery, wood or iron improvement, erected, constructed, or repaired upon any leasehold estate, or for boring, drilling or mining on said lease or lot for the development or improvement of the same, whether such labor is or may be done by the day, month or year, or by contract for the tenant or tenants, lessee or lessees of such lot or lease of parcel of land, or for their use and benefit, shall have a lien upon the personal property and fixtures on said lot or lease of ground, and upon such lot or leasehold itself for the price and value of such work and labor." The report shows that the contract of the plaintiff required him to drill the well, furnishing tools, ropes and fuel for the drilling of the same, for a specified sum. The objection to his claim was that the statute did not provide for liens in favor of contractors. The court, however, held that the fact that he was a contractor did not invalidate claim, and that as the statute directed that "the price and value" of the work should be the measure of the laborer's right of lien, and the price and value was fixed by the claimant's contract, he was entitled to a lien for the balance due him thereunder. tion whether he was entitled to a lien for tools, etc., employed in the drilling, does not appear to have been considered by the court.

his

The ques

1. Oppenheimer v. Morrell, 118 Pa. St. 189.

2. Felton v. Minot, 7 Allen (Mass.) 412.

Such a party is entitled to recover the full amount of his contract, although the work was stopped by his employers, before it was entirely completed. But it seems, that a mere architect, who only furnishes the plans and drawings, and performs no services in the erection of the building, is not entitled to a lien. Bank of Pennsylvania v. Gries, 35 Pa. St. 423; Price v. Kirk, 90 Pa. St. 47: Jones v. Shawhan, 4 W. & S. (Pa.) 257. Compare Rush v. Able, 90 Pa. St. 153.

While a mere superintendent has no lien, yet one who performs service has. Griel's Appeal (Pa.), 9 Atl. Rep.

861.

In Minnesota, one who furnishes plans and specifications for, and superintends the work upon a building under a contract with the owner, is entitled to a lien. Knight v. Norris, 13 Minn. 473.

New Jersey.-In Mutual Benefit Life Ins. Co. v. Rowand, 26 N. J. Eq. 389, it was held that the man who draws the plans and superintends and directs the construction is clearly within the provisions of the mechanics' lien law.

New York.-In Stryker v. Cassidy, 76 N. Y. 50, it is held that a supervising architect may maintain a mechanics' lien for his services. To the same effect are the foregoing cases. Arnold Gouin, 22 Grant Ch. 314; Mulligan v. Mulligan, 18 La. An. 20; Knight v. Norris, 13 Minn. 475.

In North Carolina, the word laborer under the statute does not extend to an Overseer. Whitaker v. Smith, 81 N.

Car. 340.

In Oregon, a mechanic who acts as Overseer while performing manual labor is entitled to a lien for all his services. Willamette Falls etc. Co. v. Remick, 1 Oreg. 169.

Agent of Corporation.-In Smallhouse v. Kentucky etc. Co., 2 Mont. 443, an agent of a corporation employed at a monthly salary, to superintend the erection of buildings and working of mines is held not a mechanic, lumberman, artisan, workman, laborer or

other person within the meaning of the mechanics' lien law.

Civil Engineer.--In Pennsylvania etc. R. Co. v. Leuffer, 84 Pa. St. 168; s. c., 24 Am. Rep. 189, it was held that a civil engineer was not a “laborer or workman" within mechanics' lien law. In Errickson v. Brown, 38 Barb. (N. Y.) 340, a consulting engineer was held not to be a laborer or operative within an individual liability statute.

Members of a corps of engineers engaged in constructing a railroad are not laborers entitled to a mechanics' lien. Pennsylvania etc R. Co. v. Leuffer, 84 Pa. St. 168; Peck v. Rusk, 55 Wis. 465; 10 Am. & Eng. R. Cas. 642.

Cook. A cook is not entitled to a mechanics' lien notwithstanding services were rendered on the ground to builders. McCormick v. Los Angeles W. Co., Cal. 185.

Foreman.-In Capron v. Strout, II Nev. 304, a foreman or "boss" of mining hands was held a laborer or person performing labor within the mechanics' lien law.

Gas Fitter. A mechanics' lien arises under Mississippi statute for the price of material furnished and value of labor bestowed in putting up gas fixtures attached to a building and to be used therein. Baum v. Covert, 62 Miss. 113.

House Painters.--House painters are within the protection of the mechanics' ien law, which secures a lien to persons who "furnish labor or materials for erecting or repairing" a building. Martine v. Nelson, 51 Ill. 422.

Laborers are entitled to a mechanics' lien by statute in Arkansas, California, Oregon, Colbrado, Idaho. Louisiana, Montana, West Virginia. Stimpson's Stat., § 1961.

In Pennsylvania, a laborer is not entitled to a mechanics' lien under the statute on property for his services thereupon. McIntyre v. Carver, 2 W. & S. (Pa.) 392; s. c., 37 Am. Dec. 519; Jobsen v. Boden, 8 Pa. St. 463.

Lightning Rod Erecters.-A mechanics' lien will attach and may be enforced against a building, and the land on which it is situated, for the labor and material used in the construction and erection of lightning rods upon the building, regardless of the question whether or not such rods are of any utility. Harris v. Schultz, 64 Iowa 539.

Compare Drew v. Mason, 81 Ill. 498. Plaster. A plasterer is not entitled to a lien under the acts of Georgia

1834 and 1838. Fox v. Rucker, 30 Ga. 525. But see Thompson v. Shepard, 85 Ind. 352.

In Massachusetts, a plasterer, employed by a builder who has made a written contract with the owner of land to build a house thereon, is entititled to a lien on the house and land, under St. 1855, ch. 431, § 1, for his own labor and that of his apprentices; but not for that of journeymen and laborers employed and paid by him. Parker v. Bell, 7 Gray (Mass.) 429.

Superintendent of Mine.-A superintendent or foreman of a mine is in the sense of the mechanics' and miners' lien law of Utah a laborer so as to entitle him to a lien on the mine. Cullins v. Flagstaff Silver Min. Co., 2 Utah 219. Teamster.-A teamster who hauls the lumber used in the erection of a building is entitled to mechanics' lien. Hill v. Newman, 38 Pa. St. 151; Hogan v. Cushing, 49 Wis. 169.

Laborers have a lien by statute on lumber only, to secure payment of their personal services, and not for the use of teams, etc. Coburn v. Kerswell, 35

Me. 126.

The lien of a laborer upon lumber for his personal services respecting it, does not extend to the labor of his oxen employed upon the same lumber. McCrillis v. Wilson, 34 Maine (4 Red.) 286.

con

Time Keeper.-A time keeper and superintendent employed by a tractor are not laborers entitled to a mechanics' lien against a railroad. Missouri etc. R. Co. v. Baker, 14 Kan. 563.

The president of a manufacturing corporation is not entitled to the lien given by the act for what he earns while serving the company as president. He is a member of the corporation as well as an officer, and therefore is part of the head or force which employs, and cannot be both employer and employee. England's Executors v. Beatty Organ & Piano Co., 41 N. J. Eq. 470.

1. Hazard Powder Co. v. Byrnes, 12 Abb. (N. Y.) Pr. 469; Harris v. Schultz, 64 Iowa 539; McPherson v. Walton, 42 N. J. Eq. 282; Grewar v.

Alloway, 3 Tenn. Ch. 584; Halley v. Alloway, 10 Lea (Tenn.) 523; Kirby v. McGarry, 16 Wis. 68; Harbeck v. Southwell, 18 Wis. 418; Stephens v. Ward, 11 B. Mon. (Ky.) 337; Hannon v. Logan, 14 Mo. App. 33; Cahoon v. Levy, 6 Cal. 295; Weeks v. Walcott, 15 Gray (Mass.) 54; Chapin v. Persse etc. Paper works, 30 Conn. 461; Doreston v. Krieg, 66 Wis. 604; Griswold v. Wright, 69 Wis. 1; Norfolk & W. R. Co. v. Howison, Si Va. 125; Geddes v. Bowden, 19 S. Car. 1; Graf v. Cunningham, 109 N. Y. 369; Stout v. McLachlin, 38 Kan. 120; Whittier v. Hollister, 64 Cal. 283; Childers v. City of Greenville, 69 Ala. 103; Geiger v. Hussey, 63 Ala. 338; Simonson v. Grant, 36 Minn. 439; Labor v. Armstrong, 9 Cal. 285; Dore v. Sellers, 27 Cal. 588; Bowen v. Aubrey, 22 Cal. 566; Hamilton v. Naylor, 71 Ind. 171; Woodward v. American Exposition R. Co., 39 La. An. 566; Brown v. Cowan, 110 Pa. St. 588; Savoy v. Jones, 2 Rawle (Pa.) 343; Gray v. Walker, 16 S. Car. 143; Sturges v. Green, 27 Kan. 235; Loukey v. Cook, 15 Nev. 58; Hunter v. Truckee Lodge, 14 Nev. 24; Dorsey v. Langworthy, 3 Greene (Iowa) 341; Fullerton Lumber Co. v. Osborn, 72 Iowa 472; McPherson V. Walton, 42 N. J. Eq. 282; Godeffroy v. Caldwell, 2 Cal. 489; Stockwell v. Carpenter, 27 Iowa 119.

Definition of the Word "Materials." The fair and reasonable interpretation of the word materials as universally used in the statute is all such materials as ordinarily enter into or are used in the construction of buildings, and which are within the express or implied terms of the building contract made between the owner and the contractor. Wood v. Donaldson, 17 Wend. (N. Y.) 550; McDermott v. Palmer, 8 N. Y. 383.

2. Carlisle v. Knapp, 51 N. J. L. 329; Holmes v. Shands, 27 Miss. 40; Underhill v. Corwin, 15 Ill. 556; Greenough v. Nichols, 30 Vt. (1 Shaw) 768; Harlan v. Rand, 27 Pa. St. 511; Consociated Presb. Soc. v. Staples, 23 Conn. 544; Merchant v. Perez, 11 Tex. 20; Smith v. Naugatuck Congregational Society, 23 Conn. 635; Williams v. Chapman, 17 Ill. 423; s. c., 65 Am. Dec.

669; Gaty v. Casey, 15 Ill. 189; Murray v. Earle, 13 S. Car. 87; Toledo Novelty Works v. Bernheimer, 8 Minn. 118; Kelley v. Bank of South Carolina, 1 Mc Mull. (S. Car.) Ch. 431; Cornell v. Barney, 94 N. Y. 394; Barker v. Berry, 8 Mo. App. 446; Hamptman v. Halsey, E. D. Smith (N. Y.) 668; Knapp v. Brown, 11 Abb. Pr., N. S. (N. Y.) 118; Kinney v. Blackmer, 55 Conn. 261; Rogers v. Phillips, 8 Ark. 366; s. c, 47 Am. Dec. 727; Bates v. Emory, 134 Mass 186; Gray v. Walker, 16 S. Car. 143; Brown v. Čowan, 110 Pa. St. 588; Dawson v. Harrington, 12 Ill. 300; Shotwell v. Kilgore, 26 Miss. 125; Hunter v. Blanchard, 18 Ill. 318; s. c., 68 Am. Dec. 547; Hoagland v. Van Etten, 22 Neb. 681; Broderick υ. Poillon, 2 E. D. Smith (N. Y.) 554; Quinn 7. Mayor etc. of N. Y., 2 E. D. Smith (N.Y.) 558; Walker v. Paine, 2 E. D. Smith (N. Y.) 662; Grogan v. Mayor etc. of N. Y., 2 E. D. Smith (N. Y.) 693

A builder was to erect a house just as he chose, and the land owner was to pay him a certain sum, and the builder was to pay the remainder and have the privilege of occupying the house with his family and the landowner. Plaintiff furnished materials to the builder, and filed a certificate of mechanics' lien based on a contract between plaintiff and the builder, and not mentioning the landowner. Held, the builder must be regarded as the original contractor; that the plaintiff was a subcontractor; and that the landowner was not bound as a principal. Kinney V. Blackmer, 55 Conn. 261.

The builder of a vessel made an agreement with A, who had worked on the vessel for wages, that, when she was finished, A should furnish sails, which were to remain A's property; and that A should use her and give the builder a portion of her earnings. A, falsely representing that he owned the hull, made a contract with a sailmaker, under which the sails were furnished, and A used the vessel under the agreement with the builder. Held, that the sailmaker could not maintain a petition, under the Mass. Gen. Sts., ch. 151. §§ 12, 13, to enforce a lien against the vessel. Bates v. Emery, 134 Mass. 186.

So are mechanics or journey

New York. To give a lien upon the land on which the building stands the building must have been constructed for and at the expense of the owner, or under contract with him. Cornell v. Barney, 94 N. Y. 394

The right to acquire such lien is limited to 1st, contractors contracting directly with the owner; and 2nd, to parties performing labor or furnishing materials under an agreement with the original contractor. Hervv 7. Hendricks, 4 E. D. Smith (N. Y.) 768.

1. Ark. Sts. 4422; Dakota Sts. C. Civ. P. 671; Idaho Civ. C. 824; Iowa Sts. 2137; Montana G. L. 845; Utah C. Civ. P. 1066; Wyoming, p. 460, § 2.

2. See Stim. Am. Stat., § 1966; Ala. Stat. 3452; Ariz. Stat. 1885, 93, 1; Cal. Stat. 1885, 152; Dak. C. Civ. P. 656; Ida. Civ. C. 616; Ill. 82, 29; Iowa 2130; Kan. So, 631; Ky. 76, 5; La. 2879; Mich. 8377; Minn. 90, 2; Laird v. Noonan, 32 Minn. 358; Miss. 1381; Mon. G. L. 821; Mo. 3172; New Mex. 1520; N. J. 1883, 14; N. Car. 1801; Oreg. 3198, 3202; Tenn. 2740; Tex. 3176; Utah C. Civ. P. 1058; Virginia 115, 5; Wyoming; Harbeck v. Southwell, 18 Wis. 418. But see Ames v. Swett, 33 Me. 479; Williams v. Controllers, 18 Pa. St. 275; Patent Brick Co. v. Moore, 75 Cal. 205; McFall v. McKeesport etc. Ice Co., 123 Pa. St. 259; Smith v. Steamer Eastern R., 1 Curt. (U. S.) 253; Toledo etc. Works v. Bernheimer, 8 Minn. 118; Quinlan v. Russell, 94 N. Y. 350; Sweet v. James, 2 R. I. 270; Colter v. Frese, 45 Ind. 96. Compare Rothgerber v. Dupuy, 64 Ill. 452.

In Arbuckle v. Illinois Midland R. Co., 81 Ill. 429, the right of a subcontractor to file a lien is denied. Especially when the railroad company has not been shown to have assented to the subcontract. Benedict v. Danbury etc. R. Co., 24 Conn. 328.

Montana.-Under the Montana statutes, a subcontractor is entitled to a direct lien. Merrigan v. English (Mont.), 22 Pac. Rep. 454.

In Rhode Island, under Pub. Stat., ch. 177, a subcontractor can have a mechanics' lien for the labor of himself and of his employees, but not for materials furnished by him. Hatch v. Fancher, 15 R. I. 459.