men laborers in several of the States.1 In some cases the lien is given to laborers in case of insolvency only.2 The statute making the owner liable to a subcontractor does not require directly or by inference that the contractor shall have fully performed. His failure to perform does not relieve the owner from liability to the subcontractor.3 Where the owner has in good faith paid the contractor in full according to the terms of his contract for the erection of a building, he is not liable to subcontractors, laborers or persons furnishing materials, who have filed the necessary notices for the purpose of acquiring liens within the time required by statute, but after the contractor had been paid in full. Wisconsin. The provisions of ch. 153, Rev. Stat., do not extend the privilege of a lien to every person who furnishes material, used in the construction or repairing of a building, and however remote from the first contractor; but the limit is with the subcontractor, and the person employed by or the material-man of the original contractor. Kirby v. McGarry, 16 Wis. 68; Harbeck v. Southwell, 18 Wis. 418. District of Columbia.-The mechanics' lien law does not extend to a subcontractor under a subcontractor. Monroe v. Hannan, 17 Wash. L. Rep. 268. 1. Tenn. 1984; Va. 115, 3; W. Va. 1881, 64, 2; Minnesota, Michigan and Iowa. See Mowry v. Hill, 14 R. I. 504; Pennsylvania etc. R. Co. v. Teuffer, 84 Pa. St. 168; Peck v. Rusk, 55 Wis. 465; 10 Am. & Eng. R. Cas. 642; Missouri etc. R. Co. v. Baker, 14 Kan. 563; Peters v. St. Louis & I. Mt. R. Co., 24 Mo. 586; Lumbard . Syracuse B. & N. Y. R. Co., 64 Barb. (N. Y.) 609; Kent v. New York Central R. Co., 12 N. Y. 628; Mornan v. Carroll, 35 Iowa 22; Jobsen v. Boden, 8 Pa. St. 463; Barnes v. Wright, 2 Whart. (Pa.) 193; Cobb . Traquair, 1 Frank. Jour. 97. Compare Smith Bridge Co. v. Louisville etc. R. Co., 72 Ill. 506; Cairo etc. R. Co. v. Watson, 85 Ill. 531. Where a builder contracts to erect a building, he furnishing all the necessary labor and materials to that end, a laborer employed by him to do a portion of the work has no mechanics' lien on the building erected under such contract. Gray v. Walker, 16 S. Car. 143. In Georgia, the right to file a mechanics' lien against a railroad is confined to laborers. Savannah etc. R. Co. v. Callahan, 49 Ga. 506; Savannah etc. R. Co. v. Callahan, 56 Ga. 331. In Iowa, under Rev. 1860, § 1869, a day laborer employed upon the construction of a railroad can establish a mechanics' lien for his wages. Mornan v. Carroll, 35 Iowa 22. Constitutionality of Such Statutes.— The provisions of Gen. Stat. 1878, ch. 90, securing a lien to subcontractors and others for labor performed or materials furnished in the erection of buildings pursuant to a contract between the owner and contractor, are valid and constitutional. Laird v. Moonan, 32 Minn. 358. 2. Delaware L. & W. R. Co. v. Oxford Iron Co., 33 N. J. Eq. 192; s. C., I Am. & Eng. R. Cas. 205. The Iowa Revision, 1847, providing for enforcement of a subcontractor's lien, construed not to apply to a fourth party, a laborer, and held that a laborer employed by a subcontractor for building a railroad cannot enforce a lien upon the road for the amount due him, if the contractor has fully paid the subcontractor, though the railroad company owes the contractor more than the laborer's claim against the subcontractor. Uttler v. Crane, 37 Iowa 631. In New York, the creditors of a subcontractor have no lien, under the statutes. Wood V. Donaldson, Wend. (N. Y.) 550; s. c., 22 Wend. (N. Y.) 395. 17 3. Wright v. Roberts, 43 Hun (N. Y.) 413. Compare Modes' Estate, 76 Pa. St. 502. 4. Spaulding v. Thompson etc. Soc., 27 Conn. 573; Renton v. Conley, 49 Cal. 185; Crane v. Genin, 60 N. Y. 127; Thompson v. Yates, 28 How. (N. Y.) Pr. 142; Geiger v. Hussey, 63 Ala. 338; Childer v. Greenville, 69 Ala. 103; Whittier v. Hallister, 64 Cal. 283; Rivers v. Mulholland, 62 Miss. 766; Griswold v. Wright, 69 Wis. 1; see This is not the rule, however, in all the States.1 (a) Claims and Rights of Subcontractors.-Subcontractors have a lien for labor done and materials furnished by bringing themselves within the terms of the statute.2 They must give Chicago Lumber Co. v. Woodside, 71 Iowa 359; Fay & Co. v. Orison, 60 Iowa 136; Nash v. Chicago etc. R. Co. (Iowa), 12; Am. & Eng. R. Cas. 261; Henry v. Hinds, 18 Mo. App. 497; O'Donnell v. Kramer, 65 Cal. 353; Roland v. Centerville etc. R. Co., 61 Iowa 380; Davis v. Livingston, 29 Cal. 283; Lumbard v. Syracuse etc. R. Co., 64 Barb. (N. Y.) 609; Cotter v. Frese, 45 Ind. 96; Andis v. Davis, 63 Ind. 17; Utter v. Crane, 37 Iowa 631; Mallory v. Marion Waterworks Co. (Iowa), 42 N. W. 521. No lien can be acquired against the building under the lien law, after the owner has paid the contractor the full contract price for the completion of the work, although there may be yet unpaid an additional sum, due the contractor from the owner, under a valid promise made by him, as a compensation for damages sustained by the contractor, during the progress of the work. Nolan, Gardner, 4 E. D. Smith (N. Y.) 727. Where the amount agreed to be paid for the erection of the buildings was $24,000, and it is admitted that the owner had paid his contractor $38.700 before notice of the claimant's lien was filed, the claimant was not entitled to judgment against the owner. Kennedy v. Paine, 1 E. D. Smith (N, Y.) 651. Where the principal contractors for the construction of a line of railroad, by the terms of their contract, are entitled to compensation in full before the road is completed, and this compensation is fully paid to them before completion, and without notice of the claims of a subcontractor, no lien in favor of such subcontractor can be enforced against the railroad company or against its property. Rowland v. Centerville etc. R. Co., 61 Iowa 380; 11 Am. & Eng. R. Cas. 47. Laborer Working on Railroad.-A laborer employed by a subcontractor cannot enforce a lien against the railroad when the subcontractor has been paid in full. Utter v. Crane, 37 Iowa 631. 1. Ammendale Normal Institute v. Anderson (Md.), 17 Atl. Rep. 1030; Henry v. Evans, 97 Mo. 47. See sub15 C. of L.-4 49 tit. Contracts, infra, Wash. Ter. Code, §§ 1639-1985, give to the laborer or material-man a lien, notwithstanding payment to the main contractor. Spokane Mfg. & Lumber Co. v. McChesney (W. T.), 21 Pac. Rep. 198. v. 2. Brown v. Crump, 2 Swan (Tenn.) 531; Schubert v. Crowley, 33 Mo. 564; Seibs v. Engelhardt, 78 Ala. 508; Patrick v. Ballentine, 22 Mo. 143; Sens v. Trentune, 54 Tex. 218; Walker Hauss-Higo, 1 Cal. 183; Heltzell v. Hynes, 35 Mo. 482; Jarden v. Pumphrey, 36 Md. 361; Shaver v. Murdock, 36 Cal. 293; Ombony v. Jones, 21 Barb. (N. Y.) 520; Kinney v. Blackmer, 55 Conn. 261; Neeley v. Searight, 113 Ind. 316; Kenly v. Sisters of Charity, 63 Md. 306; Kezartee v. Marks, 15 Oreg. 529; Kreilich v. Klein, 10 Phila. (Pa.) 486; Robinson v. Nearney, 5 Blackf. (Ind.) 329; Pifer v. Ward, 8 Blackf. (Ind.) 252; Donaldson v. O'Connor, I E. D. Smith (N. Y.) 695; Speilman v. Shook, 11 Mo. 340; Wehr v. Shryock, 55 Md. 334; Goble v. Gale. 7 Blackf. (Ind.) 218; Thomas v. Kiblinger, 77 Ind. S5; Whipple v. Christian, 80 N. Y. 523; Hess v. Poultney, 10 Md. 257; Eastman v. Newman, 59 N. H. 581; Henry v. Bunker, 22 Mo. App. 650; Falconer v. Frazier, 15 Miss. 235; Thomas v. Barber, 10 Md. 380; Schmidt v. Gilson, 14 Wis. 514; Bell v. Vanderbilt, 12 Daly (N. Y.) 567; Prescott v. Maxwell, 48 Ill. 82; Crawfordsville v. Brundage, 57 Ind. 262; Spalding v. Dodge, 6 Mackey (D. C.) 289; Childers v. Greenville, 69 Ala. 103; Whittier v. Wilbur, 48 Cal. 175; Geiger v. Hussey, 63 Ala. 338; Lumbard v. Syracuse etc. R. Co., 64 Barb. (N. Y.) 609; Whittier v. Hollister, 64 Cal. 283; Stephens v. Ward, 11 B. Mon. (Ky.) 337; Stout v. McLachlin, 38 Kan. 120; Lonkey v. Cook, 15 Nev. 58; Harbeck v. Southwell, 18 Wis. 418; Kirby v. McGarry, 16 Wis. 68; Hunter v. Truckee Lodge, 14 Nev. 24; Hannon v. Logan, 14 Mo. App. 33; Doreston v. Krieg. 66 Wis. 604; Cahoon v. Levy, 6 Cal. 295; Geddes v. Bowden, 19 Š. Car. 1; Weeks v. Walcott, 15 Gray (Mass.) 54; Chapin v. Persse etc. Paper Works, 30 Conn. 461; Griswold v. Wright, 69 Wis. 1; Norfolk & W. R. Co. v. Howison, 81 notice of their claims to the owner of the property. If they neglect to do so until the owner pays the price stipulated to be paid for the building or improvements, then the lien is defeated.2 If the contractor has not been paid in full, and the time prescribed by statute for filing notice of lien has expired it can only operate. to prevent the payment of whatever sum may at that time remain due from the owner.3 See NOTICE, CONTRACTS, supra. Va. 125; Graf v. Cunningham, 109 N. Y. 369. Compare Dawson v. Harrington, 12 Ill. 300; Gaty v. Casey, 15 Ill. 189; Murray v. Earle, 13 S. Car. 87; Consociated Pres. Soc. v. Staples, 23 Conn. 544; Kelley v. Bank of South Carolina, McMullen (S. Car.) Ch. 431; Knapp v. Brown, 11 Abb. Pr. N. S. 118; Greenough v. Nichols, 30 Vt. (1 Shaw) 768; Woodward v. McLaren, 100 Ind. 586; Wetherill v. Ohlendorf, 61 Ill. 283; Duff v. Hoffman, 63 Pa. St. 191; Hodgson v. Billson, 12 Kan. 568; Kitson v. Crump, 9 Phila. (Pa.) 41; Horton v. Carlisle, 2 Disney (Ohio) 184; Fullerton Lumber Co. v. Osborn, 72 Iowa 472; Harlan v. Rand, 27 Pa. St. 511; Rogers v. Phillips, 8 Ark. 366; s. c., 47 Am. Dec. 727; Miller v. Hoilingsworth, 33 Iowa 224; Cornell v. Barney, 94 N. Y. 394; Toledo Novelty Works v. Bernheimer, 8 Minn. 118; Williams v. Chapman, 17 Ill. 423; s. c., 65 Am. Dec. 669; Hunter v. Blanchard, 18 I. 318; s. c., 68 Am. Dec. 547; Shotwell v. Kilgore, 26 Miss. 125; Schenck v. Uber, S1 Pa. St. 31. 1. Kreilich v. Klein, to Phila. (Pa.) 486; Heltsel v. Hynes, 35 Mo. 482; Seibs v. Engelhardt, 78 Ala. 508; Speilman v. Shook, 11 Mo. 340; Jarden v. Pumphrey, 36 Md. 361; Sens v. Trentune, 54 Tex. 218; Wehr v. Shryock, 55 Md. 334; Kinney v. Blackmer, 55 Conn. 261; Brown v. Črump, 2 Swan (Tenn.) 531; Hess v. Poultney, 10 Md. 257; Kezartee v. Marks, 15 Oreg. 529; Patrick v. Ballentine, 22 Mo. 143; Thomas v. Barber, 10 Md. 380; Neeley v. Searight, 113 Ind. 316; Schubert v. Crowley, 33 Mo. 564; Prescott 7. Maxwell, 48 Ill. 82; Donaldson v. O'Conner, 1 E. D. Smith (N. Y.) 695; Whipple v. Christian, So N. Y. 523: Walker v. Hauss-Higo, I Cal. 183; Shaver v. Murdock, 36 Cal. 293; Henry v. Bunker, 22 Mo. App. 650; Ombony v. Jones, 21 Barb. (N. Y.) 520; Crawfordsville v. Brundage, 57 Ind. 262; Kenly v. Sisters of Charity, 63 Md. 306; Bell v. Vanderbilt, 12 Daly (N. Y.) 467; Robinson v. Nearney, 5 Blackf. (Ind.) 329; Eastman v. Newman, 59 N. H. 581; Pifer v. Ward, 8 Blackf. (Ind.) 252; Schmidt v. Gilson, 14 Wis. 514; Goble v. Gale, 7 Blackf. (Ind.) 218; Falconer v. Frazier, 17 Miss. 235; Thomas v. Kiblinger, 77 Ind. S. Where, under a contract for the erection of a building, the contractor gave to a party furnishing material an order upon the owner, which was accepted by him conditioned upon the performance of the contract; held, that whatever the contractor became entitled to thereafter must be applied to the payment of the order; the Iowa Code, § 2133, providing for enforcement of the lien to the extent of the balance due the contractor at the time of service of the notice, etc. Cutler v. McCormick, 48 Iowa 406. 2. Brown v. Crump, 2 Swan (Tenn.) 531; Renton v. Conley, 49 Cal. 185; State v. Deblieux, 25 La. An. 59; Crane v. Genin, 60 N. Y. 127; Biggs v. Clapp, 74 Ill. 335; see Quale v. Moon, 48 Cal. 478; Robinson v. State Ins. Co., 55 Iowa 489; Knowles v.Jost, 13 Cal. 620; Dore v. Sellers, 27 Cal. 588; Davis v. Livingston. 29 Cal. 283; Blythe v. Poultney, 31 Cal. 234; Henley v. Wadsworth, 38 Cal. 356; Wells v. Cohn, 51 Cal. 423; Whittier v. Hollister, 64 Cal. 283; Dingley v. Green, 54 Cal. 333; Wilson v. Barnard, 67 Cal. 422; O'Donnell v. Kramer, 65 Cal. 353; Craig v. Smith, 37 N. J. L. 549; Clough v. McDonald, 18 Kan. 114; Jensen v. Brown, 2 Cal. 694; Lumbard v. Syracuse etc. R. Co., 64 Barb. (N. Y.) 609. If the owner pays to the contractor with knowledge of the rights of subcontractors, he does not deprive them of their rights to enforce a mechanics' lien. Chicago Lumber Co. v. Woodside, 71 Iowa 359. In some States time for giving notice must expire before the owner will be relieved from liability for payments made to contractor. The owner is liable to subcontractors until after time for giving notice has expired. Norfolk & W. R. Co. v. Howison, SI Va. 125; Quinlan v. Russell, 94 N. Y. 350. 3. Davis v. Livingston, 29 Cal. 283; After notice to the owner of the claims of subcontractors, the owner cannot rightfully pay the original contractor, so as to defeat the demands of the subcontractors, nor can he pay one subcontractor in full and another nothing, as his caprice or partiality may determine. If there is not enough to pay all subcontractors and material-men after deducting all payments rightfully made, the balance is to be divided between the several claimants entitled to liens in proportion to their respective interests.1 (b) Bound by Terms of Contract.-A subcontractor's remedy is limited in its extent, by the terms of the original contract between the owner and contractor.2 And the amount which can be secured by subcontractors is limited to that due from owner to contractor. If that amount is not enough to discharge all claims of contractors who are entitled to liens, these claims are to be discharged pro rata.3 Dore v. Sellers, 27 Cal. 588; Blythe v. Poultney, 31 Cal. 234; Henley v. Wadsworth, 38 Cal. 356; McAlpin v. Duncan, 16 Cal. 127; Knowles v. Joost, 13 Cal. 620; Renton v. Conley, 49 Cal. 185; Wells v. Cohn, 51 Cal. 423; Wilson v. Barnard, 67 Cal. 422: O'Donnell v. Kramer, 65 Cal. 353; Whittier v. Hollister, 64 Cal. 283; Dingley v. Greene, 54 Cal. 333; Clough v. McDonald, 18 Kan. 114; Jensen v. Brown, 2 Colo. 694; Craig . Smith, 37 N. J. L. 549; Robinson v. State Ins. Co., 55 Iowa 489; Fullerton Lumber Co. v. Osborn, 72 Iowa 472. Burden of Proof.-The burden of proving that money is due from the owner to the contractor is upon the plaintiff. Haswell v. Goodchild, 12 Wend. (N. Y.) 373. But see Rudd v. Davis, 1 Hill (N. Y.) 278. The operation of the New York mechanics' lien law, when a notice is filed by a subcontractor, is to transfer to the lienor the contractor's claim against the owner pro tanto, and when the contract provides that the contractor shall receive So per cent. of the value of the work as it progresses, and the work has been in part performed, it is incumbent on the owner, in an action by the lienor, to show that such So per cent. was paid before the filing of the lien. McMillan v. Seneca etc. Co., 5 Hun (N.Y.) 12. Defences. It is good defence, that there are prior liens, exceeding the amount due from the owner; but the plaintiff may impeach the validity of such prior liens. Lehretter v. Koffman, I E. D. Smith (N. Y.) 664; s. c., I Code R., N. S. 284. 1. Morehouse v. Moulding, 74 Ill. 322; Clough v. McDonald, 18 Kan. 114. If some are paid to the exclusion of others before all liens are filed the owner will be liable. He cannot plead previous understanding. Othmer v. Clifton, 69 Iowa 656. Where the fund is insufficient, the contractor cannot claim pro rata with the other claimants, though he has filed a lien. Lay v. Millette, 1 Phila. (Pa ) 513. 2. Campbell v. Scaife, 1 Phila. (Pa.) 187; Dunn v. Rankin, 27 Ohio St. 132; Miller v. Whitelaw, 28 Mo. App. 639. Compare Clough v. McDonald, 18 Kan. 114. The act of 1855, with regard to mechanics' liens on buildings, provides that every building for the construction or repair of which any person shall have furnished materials or rendered services exceeding twenty-five dollars in amount, shall, with the land on which the same stands, be subject to the payment of the claim for such services and materials; such liens not to exceed in the whole the amount to be paid by the proprietor to the original contractor. Held, that a party who had been employed by a contractor to do certain work on a building, which was not called for by the contract and to which the proprietor had objected, but which was done by the party with no knowledge of such objection or of the terms of the contract, had no lien on the building for the work so done. Spaulding v. Thompson etc. Soc., 27 Conn. 573 3. Clough v. McDonald, 18 Kan. When a contract for a structure provides for changes in the plans and specifications, and extra work is done in completing the structure, without a new contract, a subcontractor of any part of the job may perfect a lien on the amount due from the owner to the contractor for such extra work.1 (c) Notice of Contract.-Knowledge by a subcontractor that there is a contract in writing charges him with notice of its terms.2 (d) Failure to Complete Contract. If the contractor for any cause fails to complete his contract, the owner will be liable to the persons entitled to a lien for so much as the work and materials are reasonably worth according to the contract price, first deducting all payments rightfully made, and damages, if any, occasioned by the nonperformance of the contract, giving to each his ratable share, and the balance he can retain with which to finish the work.3 (e) Retaining Money Due Contractor.-The owner of a building has not the right to retain the balance due on the original contract remaining in his hands, with which to enable the contractor to complete the work, after notice of the claims of subcontract (f) Expenses Incurred Through Idleness.-The subcontractor is not entitled to a lien for expense incurred through idleness enforced by the default or negligence of the principal contractor.5 2. Subcontractors and Material-men.-Where the provisions of the lien law extend only to those contracting with the owner of the building the subcontractor or material-man has no lien for supplying labor and materials. But in the majority of the States the subcontractor and the material-man are given a lien either directly upon the land and building, to secure amounts due for work and materials, or they are permitted to notify the owner of nal contractor, after all deductions are made to which the owner is entitled, is the fund, and the only fund, out of which subcontractors are to be paid. Culver v. Elwell, 73 Ill. 536. 1. Dunn v. Rankin, 27 Ohio St. 132. Where the original contract is for a specific sum of money, but with an express provision for alterations and changes in the plans, and an agreement by the owner to pay what is equitable and just, any increased work, growing out of such alteration in plans, is not extra work, but is fully within the contract, although not named in the specifications; and the lien of a subcontractor attaches to the money due for such additional work as completely as to the work done under the specifications. Brown v. Lowell, 79 Ill. 484. 2. Bowen v. Aubrey, 22 Cal. 566. 322. See Graf v. Cunningham, 109 N. Y. 369. 4. Morehouse v. Moulding, 74 Ill. 322. The owner cannot retain, as against the mechanics and material-men, a part of the sum due to the contractor, as an indemnity for a claim for damages in a suit pending between them, in a matter having no reference to the building contract. Develin v. Mack, 2 Daly (N. Y.) 94. 5. Tabor v. Armstrong, 9 Colo. 285. 6. Shotwell v. Kilgore, 26 Miss. 125; Dawson v. Harrington, 12 Ill. 300; Hunter v. Blanchard, 18 Ill. 318; s. c., 68 Am. Dec. 547; Gaty v. Casey, 15 Ill. 192; Williams v. Chapman, 17 Ill. 423; s. c., 65 Am. Dec. 669; Murray v. Earle, 13 S. Car. 87; Toledo Novelty Works v. Bernheimer, 8 Minn. 118; Consociated Presb. Soc. v. Staples, 23 |