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fications, solicit bids for. 308 and supervise the construction of the building and erection of the house on the same known as Baxter Court and Baxter Court Hotel. The complainant alleges he is an architect, residing in Nashville. He now, by bis bill, alleges that he is entitled to a mechanic's lien on said bouse and lot for his services, or compensation for services, rendered as such supervising architect, under sections 2739 and 2740 of the M. and V. compilation of the laws of Tennessee.
Section 2739 provides: “There shall be a lien upon any lot of ground or tract of land upon which a house bas been constructed, built, or repaired, or fixtures or machinery furnished or erected, or improvements made by special contract with the owner or his agent, in favor of the mechanic or undertaker, founder or machinist who does the work, or any part of the work, or furnishes the materials, or any part of the materials, or puts thereon any fixtures, machinery, or material, either of wood or metal."
Section 2740 provides: “The benefits of section 2739 shall apply to all persons doing any portion of the work, or furnishing any portion of the material for the building contemplated in said section."
The mechanic's lien is favored by the legislature, and should not be hazarded by niceties in its enforcement: Burr v. Graves, 4 Lea, 557.
However, the law is strict in its requirements that the claimant shall make it to clearly appear that he has a lien; but when that appears, the 307 remedial laws for its enforcement are to be liberally construed: Kay v. Smith, 10 Heisk. 43; Luter v. Cobb, 1 Coldw. 528; Alley v. Lanier, 1 Coldw. 541; McLeod v. Capell, 7 Baxt. 199; Dunn v. McKee, 5 Sneed, 658.
This lien is purely statutory, and unknown to the common law. Only those enumerated and embraced in the statuto are entitled to the lien. A liberal construction of the me chanic's lien law does not mean that they shall be liberally construed in embracing or including others than those enumerated in the statutes. It must clearly appear that the claimant has a lien. No one is entitled to a lien unless the statute includes him or them. They are not to be included by strained construction. Unless the statute gives the lien, the party has none.
Now, does the statute embrace, include, or give this lien to
o supervising architect? Is he & mechanic, undertaker,
308 from other states, some holding, under their statutes, that a supervising architect has this lien, others holding the contrary. The weight of authority and the reasoning seems to be that & supervising architect has not this lien. But, be this as it may, we hold that under our statutes he has no lien
the bouse or lot as supervising architect. The chancellor decreed differently. In doing so we think he was in error, and the decree declaring and decreeing the lien is reversed, and the attachment discharged.
Complainant insists that in the event that the court should hold that be was not entitled to his lien, that he is entitled to have the deed set aside from Baxter and wife to Baxter Court corporation for fraud, etc., and property sold to satisfy bis decree, he having sought, by his bill, an attachment on this ground as well as to enforce mechanic's lien, etc. There was no decree by the chancellor on this feature of the attachment, nor is there any appeal by complainant for his failure to do so, nor is there any proof in the record of this fraud etc. The whole case on the attachment seems, by the chancellor and all parties, to have proceeded upon the theory alone as to whether complainant had a lien as supervising architecte
The decree of the chancellor, as modified herein, will be affirmed. The complainant will pay the costs of the appeal.
309 LURTON, C. J., dissenting.--I am constrained to disBent. While section 2739 enumerates the persons entitled to the lien, yet section 2740 extends the lien to “all persons doing any part of the work." There is no limitation by onumeration. If the complainant did "any part of the work,"
he is within the extension of the act. Neither is there any limitation to those doing actual manual work, as the laying of brick, the joining of wood, the cutting of stone. The "boss," or "foreman," under a contractor or subcontractor, whose business it was to oversee and direct the labor of others, would be secured as a person "employed by such contractor,” etc., and entitled to the benefit of the lien just as much as a carpenter, bricklayer, or hodcarrier, though he did not personally do any of these things. The architect employed to draw plans, and supervise the erection of the building," is a person doing "a part of the work," just as clearly as the laborer whom he supervises. The proof shows that Thompson, personally by day and by night, supervised this work, and I think him within the statute.
MECHANIC'S LIEN-RIGHT OF ARCHITECT TO LIEN.-Under a mechanic's lien law giving a lien to any person who shall perform labor, etc., a supervising architect may enforce a lien: Stryker v. Cassidy, 76 N. Y. 50; 32 Am Rep. 262, and extended note; Gardner v. Leek, supreme court of Minnesota March 29, 1893. In Illinois the statute gives an architect no lien for keep ing books and making settlements with the contractors engaged in the erection of buildings, nor to an architect who supervises the improvement of the grounds and accessories: Adler v. World's etc. Exposition Co., 126 IIL 372
NASHVILLE v. SUTHERLAND AND COMPANY.
(92 TENNESSEE, 935. ] MUNICIPAL CORPORATIONS ARE LIABLE ONLY FOR THE ABSENCE OF Rod.
SONABLE CAUTION AND SKILL in the execution of work, and their offi. cers cannot lawfully contract to bind them beyond this without express charter authority. Therefore, so much of a contract purporting to be executed by a city as stipulates that it will have a sewer so constructod with a suitable valve as will prevent, in case of high floods, the flowing back of water from the river through such sewer, is ultra vires, and void, because its effect is to make the city answerable as insurer against any
damage to result by reason of overflow through this valve and pipe. IT A MUNICIPAL CORPORATION ENTERS IN A CONTRACT WHICH IS ULTRA
VIRES such contract is void. MUNICIPAL CORPORATION CANNOT ASSUME LIABILITY FOR NEGLIGEKA
where none is imposed by law. J. M. Anderson, for the appellant. Whitman and Gamble, for the respondent.
335 SNODGRASS, J. The defendant in error, by joint conveyance of its members, William Sutherland and 386 Charles
A. Graves, in deed executed June 15, 1888, conveyed to plaintiff in error a right of way through their lumber-yard for a Bewer pipe, to drain into the river a pond lying near the property of Sutherland & Co., for the consideration of one bundred and fifty dollars, and the further consideration expressed in a clause of the deed made by Sutherland and Graves
, to be hereinafter quoted, which deed was accepted by the city, the cash consideration paid, and the pipe laid and & valve constructed.
The terms of the contract were expressed in the deed referred to; and while this was signed only by the vendors, it, 18 stated, was accepted by the city, and is therefore as obligatory as if signed by its authorized officers, to the extent that it is at all binding.
The clause of the contract out of which the present contro versy arises is as follows:
"It is further agreed, and the city of Nashville binds itself, to have said sewer so constructed with a suitable valve as will prevent, in case of high rise in the river, the flowing of water from the river back through the said pipe or sewer into the lot or premises of said Sutherland and Graves to their injury or damage."
And its effect, if valid, is to make the city an insurer of the property of the conveyors against injury or damage by reason of overflow through this valve and pipe.
The city laid the pipe and constructed the valve in the fall of 1888. In 1890 an unusually high 337 rise in the river caused an overflow through the valve and pipe, and submerged the property of Sutherland & Co., doing them much damage. The present action was instituted by them to recover damages arising from breach of this contract. The amount claimed was $3,000. There was a verdict for $2,845, 8845 of which was remitted, and judgment rendered for $2,000 and costs. The city appealed in error.
The court charged the jury "that if the board of public works and affairs accepted for the city this contract, and in pursuance of it entered upon the plaintiff's premises, and occupied the same by the construction of said sewer or drain, then the city will be bound by all the covenants and stipu. lations of the contract.”
Ho refused to charge, as requested by plaintiff in error, that " the city is only liable for such negligence as is imposed by law, and the officers of the city cannot bind it to a bigher
degree of care and skill and diligence than the law imposes. Before the city can be bound by guarantee of its officers, they must have the power, under the charter of the city, to bind the city by such guarantee."
In both respects, his honor, the circuit judge, was in error. It was within the power of the officers of the city to agree to put in any given kind of sewer and valve (had they done bo) as part consideration for the grant of right of way; but they could not, in the absence of charter 338 power, bind the city by a guarantee that they or it would put in such pipe or valve as would prevent overflow to the injury or damage of defendants, and thus make the city insurers of property against such injury.
The city is only liable for absence of reasonable care and skill in the execution of such work, and its officers cannot lawfully contract to bind it beyond this without express charter power
not claimed or shown in this record to existe The first proposition is well settled everywhere, and specially in this state: Humes v. Mayor etc., 1 Humph. 403; 34 Am. Dec. 657; Nashville v. Brown, 9 Heisk. 6; 24 Am. Rep. 289; Horton v. Mayor etc., 4 Lea, 49; 40 Am. Rep 1. And the second follows as a matter of course. But this, while not heretofore, as far as we are able to find, expressly adjudged in this state, has been elsewhere settled, and the principle is a sound one.
The theory on wbich it is founded is thus stated by Mr. Dillon:
“ In determining the extent of the power of a municipal corporation to make contracts, and in ascertaining the mode in which the power is to be exercised, the importance of a careful study of the charter or incorporating act and of the general legislation of the state on the subject, if there be any, cannot be too strongly urged. Where there are express provisions on the subject, these will, of course, measure, as far as they extend, the authority of the corporation. The power to make contracts, and to sue and to be sued thereon, is usually conferred in general terms in the incorporating act. But where the power is conferred in this manner, it is not to be construed as authorizing the making of contracts of all descriptions, but only such as are necessary and usual, fit and proper, to enable the corporation to secure or to carry into effect the purposes for which it was created; and the extent of the power will depend upon the other provisions of