5. Permission by Owner to Build.-If one accepts, or knowingly avails himself of the benefit of services done for him without a contract or without his authority or request, he becomes liable therefor; and a fortiori he is so liable where the services are procured to be rendered with his knowledge and consent.1

6. Special Contract.-Where there is a special contract between a mechanic and the owner or builder of a house for the work which the former is to do in constructing the house, he must look to his contract alone for his security, and cannot resort to the remedy which the mechanics' lien law provides.2

7. Entire Contracts.-A lien for labor furnished under an entire contract upon several buildings owned by the same person and situated on the same lot attaches upon the whole estate for the whole value of the labor, although the contracts specifies separate amounts for the work to be done on each house.3 A workman

furnishing materials have no privilege when their claim is over $500, and the agreement has not been reduced to writing and registered with the recorder of mortgages. McRae v. Creditors, 16 La. An. 305.

1. Wheeler v. Hall, 41 Wis. 447; Wheeler v. Scofield, 67 N. Y. 311; Hackett v. Badeau, 63 N. Y. 476; Conklin v. Bauer, 62 N. Y. 620; Burkitt v. Harper. 79 N. Y. 273; Schuyler v. Hayward, 67 N. Y. 253; Galbreath v. Davidson, 24 Ark. 490.

Where a contractor undertakes to build a house and to furnish all labor, materials, etc., at his own cost, a mechanic employed by him without the owner's consent has, for his labor, no lien on the building erected. Murray v. Earle, 13 S. Car. 87.

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.

Though, under a valid construction contract, the lien of one furnishing material to a subcontractor might not attach until notice is given the owner, under a contract void for want of record, the material-man being deemed by the statute to have contracted with the owner, his lien relates to the time of furnishing the material. and is not defeated by the subsequent filing of a declaration of homestead on the property. Davies-Henderson Lumber Co.

2. Haley v. Prosser, 8 W. & S. (Pa.) 133; Hoatz v. Patterson, 5 W. & S. (Pa.) 537; Ellenwood v. Burgess, 144 Mass. 534; Beasley v. Webster, 64 Ill. 458.

3. Worthley v. Emerson, 116 Mass. 374; Wall v. Robinson. 115 Mass. 429; Edwards v. Edwards, 24 Ohio St. 402; Batchelder v. Rand, 117 Mass. 176. See McKelleget v. Eckhard, 4 Mo. App. 589.

Compare Fitzgerald v. Thomas, 61 Mo. 499; Fitzpatrick v. Thomas, 61 Mo. 515.

Where the owner of two contiguous town lots contracts by one entire contract for the erection of a row of houses upon them, the parties will be deemed to have connected and treated the whole as one tract, and the tract constitutes one "lot," within the meaning of Gen. St. Minn. 1878, ch. 90, § 1, giving the laborer or material man a lien upon a house and the "lot of ground" on which such house is erected. Lax v. Peterson (Minn.), 44 N. W. Rep. 3.

In Freeman v. Annent, 5 N. Y. Leg. Obs. 381, it was held, that by the erection of several houses, under one contract, upon distinct lots, the contractor becomes entitled to a separate lien upon

each house.

Grading Railroad.-Contract to grade a section of railroad for a fixed sum, payable as work progresses, is entire, and but one lien can be acquired under it. Cox v. Western Pac. R. Co., 44 Cal. 18; Cox v. Western Pac. R. Co., 47 Cal. 87.

who undertakes to perform an entire contract cannot quit when he chooses, without cause and enforce a lien for such portion of the work as he may have performed, nor can he enforce a lien for each week's wages. He has no power to split up an entire demand and maintain several suits, and enforce several liens.1

8. Joint Contract.-Where two persons make a joint contract for the erection of houses upon separate lots, owned by them in severalty, a mechanic employed by the contractor may obtain a lien for his work, for which they are jointly liable.2 So where a mechanic furnishes materials for the erection of several houses, under a contract for a sum in gross, he is entitled to be paid out of all or any of them.3

9. Contracts with Third Persons.-Where a lien is given for labor bestowed and materials furnished, for the construction of a building, in favor of those who contract with the builder or owner, no lien attaches in favor of third persons who contracted with him who contracts with the builder or owner.4

10. Continuous Contracts. If the work and materials are continuous in their character, the contract must be regarded as an entirety. To determine whether a contract is one continuous contract or several contracts is ordinarily a mixed question of law and fact. Where work distinct in its nature is performed at different times it will be presumed to have been performed under distinct engagements, rather than under one contract unless the intention appears to have been otherwise.

11. Filing of Contract.-In some of the States where the statutes require the contract to be in writing it must also be recorded.

1. Thomas v. Industrial University, 71 Ill. 310.

2. Mandeville v. Reed, 13 Abb. (N. Y.) Pr. 173.

3. Livingston v. Miller, 16 Abb. (N. Y.) 371.

Pr.

4. Holmes v. Shands, 27 Miss. 40; Kees v. Kerney, 5 Md. 419; Cochran v. Swann, 53 Ga. 39. See Sly v. Pattee, 58 N. H. 102; Van Loan v. Heffner, 30 La. An., part 2, 1213.

5. Mellor v. Valentine, 3 Colo. 255; Hofer's Appeal, 116 Pa. W. 360.

6. Paige v. Bettes, 17 Mo. App. 366. Where a builder or material man has begun to furnish work or materials towards the erection or repair of a build ing, without any agreement as to the amount of material or duration of his employment, but under a reasonable expectation that further work or material will be required of him to finish the undertaking, and he is afterward called upon, from time to time, to furnish the same until the building is completed, he is entitled to his lien, as though acting under an original contract for the en

tire labor or materials so furnished. Hazard Powder Co. v. Loomis, 2 Disney (Ohio) 544.

7. Stim. Am. Sts., § 1964; McClallan v. Smith, 11 Cush. (Mass.) 238; Huck v. Gaylord, 50 Tex. 578; Patshuisky v. Krempkan, 26 Tex. 307; Cameron v. Marshall, 65 Tex. 7; Davies-Henderson Lumber Co. v. Gottschalk (Cal.), 22 Pac. Rep. 860; Pairo v. Bethell, 75 Va. 825; Martin v. Roberts, 57 Tex. 564. Compare Roberts v. Hyde, 15 La. An. 51; Kellogg v. Howes (Cal.), 22 Pac. R. 509.

If the labor performed by a mechanic is of such a character as would enable him under the statute to establish his lien on the property on which his labor is bestowed, by complying with the statute, he may, after his work is finished, by contract in writing between himself and the owner of the property, secure the statutory lien for his debt by having his contract recorded. Nor will the fact that the payment of the debt is by the terms of the written contract postponed to a future day, impair or af

Especially does it seem necessary in order to preserve the lien against third persons for work and labor done and materials furnished. But the filing of such contracts must be between parties who in verity, and not in form merely, hold towards each other the relation of contracting parties. It must be a real, not a fictitious bargain. A paper filed as a contract may serve as a consent in writing of the legal owner to erect the building, when, by its terms, the expense is not to be borne by the licensee.3

12. Contract Need Not Stipulate for Lien.-To entitle the mechanic or builder to a lien it is not necessary that it should be expressly understood that the artisan is to have a lien for his work and materials.1

13. Contract Need Not be for Payment in Money.-The fact that compensation is not all to be rendered in money interposes no obstacle to the fastening of the lien.5

14. Contracts Made Out of the State.-A mechanics' lien will attach under the statute, although the contract under which the materials were furnished was made out of the State.6

15. Contracts Made After Commencement of Suit to Foreclose.-A contract with a mechanic, made after a suit for foreclosure was commenced, is subject to the contingency of a decree; and such

fect the lien. Mundine v. Berwin, 62 Tex. 341.

Under the Rev. Sts. of Massachusetts, ch. 117, concerning the lien of mechanics, it was held that such lien attached, although the contract referred to in the statute should not be recorded until after the death of the owner of the land. Foster, Petitioner, 20 Pick. (Mass.) 542. Intention Immaterial. The code gives a lien when the building contract is recorded; the plaintiff refused to proceed unless the contract was recorded, whereupon the defendant caused this to be done, but without being aware of the legal consequences of his act, and without any intent to give a lien. Held, that the intent was immaterial, and that there was a good lien; there being no pretence of fraud or misrepresentation of the effect of the record by the plaintiff. Iaege v. Bossieux, 15 Gratt. (Va.) 83.

Filing Specification with Contract.When, by a contract to build, the builder is to furnish all the labor and all the materials, it becomes unnecessary for the purposes of the lien law to file the specifications with the contract, though referred to in it as forming part of it. Babbitt v. Condon, 27 N. J. L. 154.

1. Kohn v. McHatton, 20 La An. 485; Ayres v. Revere, 25 N. J. L. 474.

2. Young v. Wilson, 44 N. J. L. 157.

3. Young v. Wilson, 44 N. J. L. 157.

4. Jones v. Swan, 21 Iowa 181; Haley v. Prosser, 8 W. & S. (Pa.) 133; Morris Canal Co. v. Rockaway Man. Co., 14 N. J. Eq. 189; Atkins v. Little, 17 Minn. 342.

5. Barrows v. Baughman, 9 Mich. 213; McLaughlin v. Reinhart, 54 Md. 71; Dowdney v. McCullom, 59 N. Y. 367; Hinchman v. Lybrand, 14 S. & R. (Pa.) 32; Campbell v. Scaife, 1 Phila. (Pa.) 187; Haviland v. Pratt, 1 Phila. (Pa.) 364; McCall 7. Eastwick, 2 Miles (Phila.) 45; Protection Ins. Co. v. Hall, 15 B. Mon. (Ky.) 411.

If a contractor engages to construct a building in consideration, in whole or in part, of a debt then due from him to the employer, or of a sum paid him by the employer upon the execution of the contract, that portion of the contract price represented by the debt or the advance payment can not become a lien upon the building. Dore v. Sellers, 27 Cal. 588.

6. Gaty v. Casey, 15 Ill. 189; St. Louis Bridge etc. Co. v. Memphis etc. R. Co., 72 Mo. 664; Fagan v. Boyle Ice Mach. Co., 65 Tex. 324.

To entitle the contractor to a lien for labor furnished, it is immaterial where the labor is performed, if it finally goes into the repairs or improvements con

decree and the sale thereunder cut off all rights claimed by the mechanic.1

16. Modification of Contract.-Where a builder's contract is changed in a material point, without authority, after its execution, but a subcontractor is not prejudiced in any way by such alteration, his right to a mechanics' lien will not be enlarged on account thereof.2 So a party who, with notice of the nature and amount of a contractor's mechanics' lien, takes a conveyance of the property subject to it, cannot be affected by a subsequent alteration of the contractor's contract.3

17. Performance of Contract.-An extension of the time within which the building may be completed, and the making slight alterations in the manner of its execution, will not abrogate the contract or affect the lien, the parties in their settlement regarding the contract as binding.4 When a party gives assent to an extension of time for the completion of a special contract the plaintiff will be entitled to recover only the rate of compensation fixed by the contract where there is no intention during the progress of the work to charge a different rate of compensation. But where the delay is caused by the wilful acts or omissions of the party for whom the work is done, the rule that the special contract must control as to the rate of compensation no longer prevails and the party is entitled to recover under a quantum meruit. So where a mechanic discovers, after a personal exam

tracted for. Sweet v. James, 2 R. I. upon the premises of the former, the 270.

1. Green . Sprague, 120 Ill. 416. 2. Andrews v. Lurdick, 62 Iowa 714. See McClallan 7. Smith, II Cush. (Mass.) 238.

In Davis v. Livingston, 29 Cal. 283, 290, it was held, that a contract could not be affected by modification or new contract subsequently made, without notice of change. Shaver v. Murdock, 36 Cal. 293.

3. Soule v. Dawes, 7 Cal. 575Where, after the commencement of work upon a house, the contract was enlarged to also include the building of a barn, held that the contract would be considered a single contract with respect to the lien. Chapman v. Wadleigh, 33 Wis. 267.

4. Montandon v. Deas, 14 Ala. 33; Gordon v. Forrey, 15 N. J. Eq. 112.

The lien is not affected by a suspension of the work without any fault on the part of the person entitled to the lien. Knight v. Norris, 13 Minn. 473.

By the terms of a contract between defendants P and G, the latter agreed to make certain repairs and alterations

work to be completed in two months. G leased certain other premises of P, and it was agreed that the rent falling due before the completion of the contract was to be credited upon the contract price. In an action by a subcontractor to foreclose a mechanics' lien, it appeared that the contract was not performed within the time, but the referee found that it was subsequently performed before the commencement of the action, and that defendant had waived performance as to the items wherein there was not perfect performance. Held, that the failure to perform was no defence. Heckman v. Pinkney, 81 N. Y. 211.

An extension of a building contract may be inferred from circumstances. Meehan v. Williams, 36 How. (N. Y.) Pr. 73.

An objection to a lien for building a mill, that, through the builder's fault, it was not completed in time, is immaterial where he was permitted thereafter to proceed with the work. Paddock v. Stout, 121 Ill. 571.

5. Merrill v. The Ithaca & Owego R. Co., 16 Wend. (N. Y.) 586.

ination into the character of the work, that it cannot be done for the price agreed upon he should notify the other party in order to recover the actual value of the work done in excess of the stipulated price.1

18. Substantial Performance Necessary.-A substantial performance of the contract is necessary in order to recover under the mechanics' lien law. If the work is only partly performed a contractor's lien will not be defeated where such part performance has been accepted by the owner.3

19. Where Building Is Destroyed Before Completion.-Where a person contracts to build a house on the land of another and the house is before its completion destroyed by fire without his fault, he is not thereby discharged from his obligation to fulfil his contract.4

20. Approval of Architect.-Where the contract provides that payments shall be made on the certificate of the architect his certificate is conclusive of the rights of all parties concerned, unless it can be shown that it was obtained by the owner by collusion or fraud.5

1. Martine v. Nelson, 51 Ill. 422. 2. Lombard v. Johnson, 76 Ill. 599; Smith v. Brady, 17 N. Y. 173; Smith v. Coe, 2 Hilt. (N. Y.) 365; Fish v. Stubbings, 65 Ill. 492; Welch v. Sherer, 93 Ill. 64. See McNeal v. Clement, 2 Thomp. & C. (N. Y.) 363.

Where a building erected under contract is substantially completed, full performance in minor particulars may be dispensed with by the party to whom it is due, and a mechanics' lien, filed by the builders thereafter, is valid. Stewart v. M'Quaide, 48 Pa. St. 191.

H contracted in writing to build a house for L by a certain time, of certain dimensions, and in a certain manner, on L's land, and afterwards built the house within the time, of the dimensions agreed on, but in workmanship and materials varying from the contract. L was present almost every day during the building, and had an opportunity of seeing all the materials and labor, and objected at times to parts of the materials and work, but continued to give directions about the house, and ordered some variations from the contract. He expressed himself satisfied with parts of the work from time to time, though professing to be no judge of it. Soon after the house was done, he refused to accept it, but I had no knowledge that he intended to refuse it until after it was finished. It was held, that I might maintain an action against L on quantum meruit for his labor and

on a quantum valebant for the materials. Held, also that the proper measure of damages in the action was the contract price of the house, deducting from it so much as the house was worth, less an account of the variations from the contract. Hayward v. Leonard, 7 Pick. (Mass.) 181.

3. Bell v. League, 85 Ala. 211. 4. Adams V. Nichols, 19 Pick. (Mass.) 275; School District No. 1 v. Dauchy, 25 Conn. 530.

One who has agreed to build a house on the land of another, and has substantially performed his contract, but has not completely finished the house nor delivered it, when it is destroyed by fire, is liable to an action for money advanced upon the contract, and damages for its nonperformance. Tompkins v. Dudley, 25 N. Y. 272.

Where labor is performed and materials furnished, under a contract to do the carpenter's work only of a building, the risk of destruction by fire to be on the owner, and the building is destroyed by fire so that the workman is prevented without fault on his part from completing his contract, a decree giving him a lien on the lot for the sum due him for work and material will not be disturbed. Sontag v. Brennan, 75 Ill. 279.

5. Dingley v. Greene, 54 Cal. 333; Holmes Richet, 56 Cal. 307.

A building contract made an architect's certificate of fulfilment a condition precedent to payment. Held, that