Clark v. Raymond, 27 Mich. 456; Willard v. Magoon, 30 Mich. 273: Wagar v. Briscoe, 38 Mich. 587; Rogers v. Phillips, 8 Ark. 366; s. c., 47 Am. Dec. 727; New York Stat. 1880, 486, 1; New Jersey Stat. Mech. Liens 8; Woodward v. American Exposition R. Co., 39 La. An. 566.

A contracted with B to build a house on land of C. The house was built without written consent of C, though he furnished the money. A occupied the land, and the house was built for his use, and he superintended its construction. The mechanics filed their lien and commenced suit thereon against A and B, but did not make C a party. Held, that the lien could not be enforced against land or building. Babbitt v. Condon, 27 N. J. L. 154.

1. Stimp. Am. Sts., kill v. Davis, 63 Ga. 645.

1964; Gas

A building contract made with one in possession of land under a contract to purchase, may be a contract with the owner within the meaning of the mechanics' lien law; and where the contract to purchase is not carried out, a lien against the building may be established, and the mechanic may obtain a judgment under which the building may be sold, with a right of removal. Judd v. Duncan, 9 Mo. App. 417.

Where the mechanic contracted to do the work with the occupant of the premises in possession thereof and controlling the same, and did the work for him and recorded his lien on the house as the house and premises of the party in possession who contracted with him, the said lien, so far as it operated on the improvement made by said mechanic, was not lost because the occupant did not have the absolute title to the premises, but attached to the improvement so made without regard to the title, under said section in said code, which at the date of the lien was the law. Gaskill v. Davis, 63 Ga. 645.

2. Ala. 3457; Ark. 4405; Ariz. 1885, 93, 6; Cal. 11193, 1885, 152; Col. 2145; Dak. 825, C. Civ. P. 658 and 660; Del. V. 16, 145, 1; Ga. 1979; Ida. Civ. C. 816;

Ill. 82, 34; Iowa 1934; Ind. 1883. 115. 9; Kan. 80, 631; Ky. 70, 5; La. 2879; Md. 67, 6, 13; Mon. G. L. 823; Mo. 3191; Mich. 1885, 216, 3; Miss. 1381; Neb. 1885, 62, 2; Nev. 11193, N. M. 1530; N. Y. 1865, 778, 18; 1864, 366, 2; 1880, 143, 2, 486, 2; 1882, 410, 1808; N. J. 1882, 410, 1808, 3; Pa. Mech. L. 35; N. Car. 1802; Ohio 3193-4, 3201, 3204; Oreg. 1885, 152; Utah C. Civ. P. 1067; Va. 115, 6 and 8; W. Va. 1882, 64, 5; Wy., p. 460, § 2; 1877, p. 81, § 19, Wis. 1885, 312.

3. Stim. Am. Stat, § 1970; Va. 115, 5; 1884, 456; Ark. 4075. See Childers v. Greenville, 69 Ala. 103; Geiger v. Hussey, 63 Ala. 338; Blythe v. Poultney, 31 Cal. 233; Knowles v. Joost, 13 Cal. 620; McAlpin v. Duncan, 16 Cal. 127; Dore v. Sellers, 27 Cal. 588; Davis v. Livingston, 29 Cal. 283; Henley v. Wadsworth, 38 Cal. 356; Renton v. Conley, 49 Cal. 185; Wells v. Cahn, 51 Cal. 423; Dingley v. Greene, 54 Cal. 333; Meigs v. Bruntsch, 54 Cal. 601; Rosenkranz v. Wagner, 62 Cal. 151; Whittier. Hollister, 64 Cal. 283; O'Donnell v. Kramer, 65 Cal. 353; Wilson v. Barnard, 67 Cal. 422; Spaulding v. Thompson etc. Soc., 27 Conn. 573; Rivers. Mulholland, 62 Miss. 766; Crane v. Genin, 60 N. Y. 127; Thompson v. Yates, 28 How. (N. Y.) Pr. 142; Griswold '. Wright, 69 Wis. 1; Fay v. Orison, 60 Iowa 136; Nash v. Chicago etc. R. Co., 62 Iowa 49; 12 Am. & Eng. R. Cas. 261; Roland v. Centerville etc. R. Co., 61 Iowa 380; Lumbard v. Syracuse etc. R. Co., 64 Barb. (N. Y.) 609; Colter v. Frese, 45 Ind. 96; Andis v. Davis, 63 Ind. 17.

New York City.-Under the Mechanics' Lien Law for the city of New York (ch. 379, Laws of 1875) a subcontractor or material-man can acquire a lien only to the extent of the sum due from the owner to the contractor at the time of filing the lien. Gibson Lenane, 94 N. Y. 183.

v.

If the owner has prior to that time at the request of the contractor assumed an obligation to pay another subcontractor or material-man to the extent of such obligation, it constitutes a pay

ment. Where, therefore, the owner has prior to the filing of a lien accepted orders drawn upon him by the contractor, in favor of other subcontractors or material-men, and the contractor has thereupon receipted as for so much payment, to the full amount of his remaining liability upon the contract. no lien is acquired. So also if the liability of the owner is assumed at his request and for his benefit by a third person, and this is accepted as payment by the contractor, so far as subsequent liens are concerned, it is payment. Gibson v. Lenane, 94 N. Y. 183.

In California, Illinois, Louisiana, Ohio and New York, if the head contractor is paid in advance by collusion the owner is liable to subcontractors, laborers, etc., to the extent of such pay

ment.

What Constitutes Payments.-An oral undertaking of the owner that he will pay certain debts of the contractor, does not constitute a payment for which he must be allowed, under a statute provision that the owner of the building shall be allowed, in settling the liens of subcontractors, whatever payments he has made in good faith to the contractor; even though, after notice of the subcontractor's lien, he has actually paid the debts as promised. Gridley v. Sumner, 43 Conn. 14.

1. Stimp. Am. Stat., § 1970, Kansas, Nebraska. See Norfolk & W. R. Co. v. Howison, 81 Va. 125; Quinlan v. Russell, 94 N. Y. 350.

Moneys paid by owner in procuring materials to complete the building when the contractor fails to perform his contract, are not payments to the contractor such as will render the owner liable to a material man. Rodbourn v. Seneca Lake Grape etc. Co., 67 N. Y. 215.

In an action by D, a mechanic, to enforce a lien for labor on A's building, an answer that before the recording of the notice of the lien, A had paid M, the contractor, in full, that D could then have collected his claim of M, and that afterwards D had assisted M to dispose of his property subject to execution, with intent to defraud A, well

knowing of such payment. Held, to be insufficient, D's right to a lien being statutory. Andis v. Davis, 63 Ind. 17. In California, sums paid the contractor before abandonment of the work cannot defeat the lien of a subcontracter unless it was due when paid. Quale v. Moon, 48 Cal. 478, 479.

2. Stimp. Am. Stat. L., § 1970.

3. Stimp. Am. Stat., § 1964; Meilson v. Iowa Eastern R. Co., 51 Iowa 184; Moore v. Jackson, 49 Cal. 109; Woodward v. American Exposition R. Co., 39 La. An. 566; Alley v. Lanier, I Coldw. (Tenn.) 540; Great Western Mfg. Co. v. Hunter, 15 Neb. 32; Leddo v. Hughes. 15 Ill. 41; Claycomb v. Cecil, 27 Ill. 497; Barnes v. Thompson, 2 Swan (Tenn.) 313; Baxter v. Hutchings, 49 Ill. 116; Owens v. Northrup, 30 Wis. 482; McDonnell v. Dodge, 10 Wis. 106; Cornell v. Barney, 94 N. Y. 394; Copeland v. Kehoe, 67 Ala. 594; Scales v. Paine, 13 Neb. 521; Hall v. Parker, 94 Pa. St. 109. See AGENTS, infra.

4. Arkansas, Alabama, Dakota, Iowa, Kansas, Nevada, Missouri, Texas, Wyoming. Board of Education v. Greenbaum, 39 Ill. 609; Greenough v. Nichols, 30 Vt. 768; Gortemiller v. Rosengarn, 103 Ind. 414. See TRUSTEES, infra.

5. New York 1882, 119; California, Arkansas, Iowa, Dakota, Alabama, Arizona, Missouri, Nevada, Oregon, Texas, New Mexico, Washington, Wyoming. See Geiger 7. Hussey, 63 Ala. 338; Childers v. Greenville, 69 Ala. 103; Whittier v. Hollister, 64 Cal. 283; Graf v. Cunningham, 109 N. Y. 369; Hunter v. Truckee Lodge, 14 Nev. 24; Woodward v. American Exposition R. Co., 39 La. An. 566.

Under the provisions of the mechanics' lien law, the contractor has the power to bind the building by his acts, although he may have no authority to bind the owner, personally. Morrison v. Hancock, 40 Mo. 561.

6. Young v. Wilson, 44 N. J. L. 157; Strong v. Van Deursen, 23 N. J. Eq. 369; Muldoon v. Pitt, 54 N. Y. 269; Boteler v. Espen, 99 Pa. St. 313.

1. Bliss v. Patten, 5 R. I. 376. 380; Finley's Appeal, 67 Pa. St. 453; Berry v. Weisse, 2 E. D. Smith (N. Y.) 662; Fetter v. Wilson, 12 B. Mon. (Ky.) 90; Cameron v. McCullough, 11 R. I. 173; Johnson v. Parker, 27 N. J. L. 239.

2. Stimp. Am. Stat. Law, § 1964. 3. Hammond v. Wells, 45 Mich. 11; Bottomly v. Grace Church, 2 Cal. 90; Houghton v. Blake, 5 Cal. 240; Holms v. Richet, 56 Cal. 307; Hill v. Elliott, 16 S. & R. (Pa.) 56; Hill v. Sloan, 59 Ind. 186; Miller v. Roseboom, 59 Ind. 345; Hill v. Braden, 54 Ind. 72. See Croskey v. Coryell, 2 Whart. (Pa.) 223; Talbott v. Goddard, 55 Ind. 496; City of Crawfordsville v. Brundage, 57 Ind. 262; Crawfordsville v. Lockhart, 58 Ind. 477; Hill v. Ryan, 54 Ind. 118. It is not enough that they were used in its construction. Bottomly v. Grace Church, 2 Cal. 90; Houghton v. Bleake, 5 Cal. 240; Holms v. Richet, 56 Cal. 307.

A contract to furnish materials for a mill at Marseilles, if it does not appear that the defendant has more than one mill at that place, will be a sufficiently definite description of property to en able the creation of a mechanics' lien. Strawn v. Cogswell, 28 Ill. 457.

If it appears that materials furnished were used in the erection of the building on which a lien is claimed, it is reasonable to infer that they were so intended to be used when the contract was made, unless it otherwise appears that they were contracted for to be used elsewhere. Power v. McCord, 36 Ill. 214; Martin v. Eversal, 36 Ill. 222.

In Montandon v. Deas, 14 Ala. 33, it was held not necessary to the creation of the lien that the land should be described in the building contract, upon which the building is to be erected.

Furnishing Material Upon Open Account. Where lumber is furnished upon an open general account, reference must be made of its being put into some particular building. Hill v. Bishop, 25 Ill. 349; Crokey v. Corey, 48 Ill. 442; Fuller v. Nickerson, 69 Me. 228; Rogers

v. Currier, 13 Gray (Mass.) 129; Weaver v. Sells, 10 Kan. 458; Chapin v. Persse etc. Paper Works, 30 Conn. 461. But see Mehan v. Thompson, 71 Me. 492; Esslinger v. Huebner, 22 Wis. 632.

As between the material man and the owner of the building, the former has a lien for materials sold to the latter with the understanding that they were to be used in erecting the building, although the latter made a different disposition of them and procured materials for the building elsewhere. Esslinger v. Huebner, 22 Wis. 632.

Where a vendor sells lumber on credit without any reference to what shall be done with it, and the vendee afterwards uses the lumber in constructing a building on land belonging to himself, the vendor has no lien on the said land and building for the purchase money which will be prior to the lien of a subsequent mortgage, nor in fact has he any lien. In order for a vendor to obtain a lien in such a case he should sell and furnish the lumber with the intention and understanding that it should be used in constructing the building. Weaver v. Sells, 10 Kan. 609, 610; affirmed in Delahay v. Goldie, 17 Kan. 263, 265.

A contract to build a house at a certain price by the day, employing such help as the contractor may deem necessary, and at such prices as he may deem reasonable and proper, is too indefinite to give him or workmen employed by him a lien under Stat. 1851, ch. 343, for labor performed under the contract. Sanderson v. Taft, 6 Gray (Mass.) 533.

Where the evidence shows that the materials for which a lien is claimed were contracted for for the purpose of being used in a building in process of erection on the land sought to be subjected to a lien and were so used, that will suffice although the contractor for such materials did not describe the lot of ground upon which they were to be placed. And if it only appears that the materials were used in such building, that will warrant the jury in inferring that they were purchased for that

purpose. Power v. McCord, 36 Ill. 214; Martin v. Eversal, 36 Ill. 222.

Where proposed Building Need Not be Specifically Mentioned.—If the defendant purchased, and the plaintiffs sold him lumber for the purpose of building a house, and no particular lot or tract of land was designated whereon it was to be located, and the lumber was used in a house afterwards erected by the defendant, the plaintiffs' right to a lien would be as perfect as if it had been purchased to repair a house especially and definitely pointed out and named. Coats v. Shorey, 8 Iowa 416; Monroe v. West, 12 Iowa 119.

1. Morrison v. Minot, 5 Allen (Mass.) 403; Graves v. Bemis, 8 Allen (Mass.) 573

A general employment of a carpenter by a contractor to work in getting out finish for the buildings of two different persons in process of erection, at day's wages to be afterwards fixed, is a sufficiently definite contract for the foundation of a mechanics' lien, under the Gen. Stats. ch. 150, by the carpenter for the labor performed on the finish for one of the buildings. Wilson v. Sleeper, 131 Mass. 177.

2. Clark v. Manning, 90 Ill. 380, overruling Fish v. Stubbings, 65 Ill. 492; Powell v. Webber, 79 III. 134; Burkhart v. Reisig, 24 Ill. 529; Senior v. Brebnor, 22 Ill. 252; Reed v. Boyd, 84 Ill. 66; Younger v. Louks, 7 Ill. App. 280. Compare Beasley v. Webster, 64 Ill. 458; Fish v. Stubbings, 65 III. 492.

In Hardin v. Marble, 13 Bush (Ky.) 58, it was held that if the contract fixes a time for payment which is beyond the time limited by the lien law for commencing proceedings to foreclose the lien does not attach.

In Illinois, under a statute providing that there shall not be a mechanics' lien if the time of payment stipulated for in the contract is beyond a year from the time fixed for the completion of the work, the fact that the note given is entitled to three days' grace does not affect the case and prevent the lien. Paddock v. Stout, 121 Ill. 571; Stout v. Sower, 22 Ill. App. 65.

3. Lyon v. Logan, 68 Tex. 521; Lax v. Peterson (Minn.), 44 N. W. Rep. 3.

Under the Mass. Pub. Stat., ch. 191, no lien can be maintained on several lots of land, for a general balance of an account due for labor performed, under an entire contract, partly on the land described in the petition, and partly on other land, owned by the same person. Rice v. Nantasket Co., 140 Mass. 256.

4. Neeley v. Searight, 113 Ind. 316. 5. Jones v. Swan, 21 Iowa 181; Milner v. Norris, 13 Minn. 455; Stockwell v. Carpenter, 27 Iowa 119. See Wolf v. Batchelder, 56 Pa. St. 87.

A building was contracted to be finished on September 1st, and stone was furnished on open account by the subcontractor from time to time from May to September 21st, and then, after an interval of four months, the building being apparently complete, stone steps which the architect had refused to accept were by the subcontractor replaced with others, which constitute the last item of the subcontractor's account. Held, that this item was sufficiently connected with the others, there being evidence tending to show that all the items were furnished under one contract, expressed or implied. Bruce v. Berg, 8 Mo. App. 204.

In Illinois, it seems that a definite time must be fixed in the contract for