62 DIVISION III. AT TIME OF FILING CLAIM. In General. 99 61 § 62. Most mechanic's lien statutes require the lien claimant, before beginning suit to enforce his lien, to file his claim with the recorder of deeds or some other appropriate officer; and under the statutes of some states the lien does not attach until such claim is filed.59 This is the case where the statute declares that the lien takes effect as a mortgage of the date when the claim is filed,** or that a lien arises upon "filing the notice of lien," or that filing the claim shall have the same effect as to notice as the recording of a mortgage, 2 or that a lien may be acquired by filing a claim within a specified time, as well as where the statute expressly states that the lien shall attach when the claim is filed. Where, under the statute, the lien does not attach till the claim is filed, the fact that the lien claimant was openly and notoriously doing the work before that date makes no difference as to the date when the lien attaches.** It has been held in Alabama that as to one who is not a party to the suit to foreclose the lien, and who is therefore not bound by the recitals of the judgment of foreclosure as to the time when the ma 59 Conboy v. Fricke, 50 Ala. 414; Loring v. Flora, 24 Ark. 151; Turner v. Strenzel, 11 Pac. 389, 70 Cal. 28; Wiggins v. Bridge, 11 Pac. 754, 70 Cal. 437; Cotton v. Holden, 1 MacArthur, 463; Whelan v. Young, 21 D. C. 51; Robertson v. Barrack, 45 N. W. 1062, 80 Iowa, 538; Wilson v. Hopkins, 51 Ind. 231; Marmillon v. Archinard, 24 La. Ann. 610; Gay v. Bovard, 27 La. Ann. 290; Sisson v. Holcomb, 26 N. W. 155, 58 Mich. 634; Meyer v. Berlandi, 40 N. W. 513, 39 Minn. 438; Noll v. Kenneally, 56 N. W. 722, 37 Neb. 879; Develin v. Mack, 2 Daly (N. Y.) 94; McCorkle v. Herrman, 22 N. E. 948, 117 N. Y. 297; Coleman v. Railroad Co., 35 Pac. 656, 25 Or. 286; Hinckley & Egery Iron Co. v. James, 51 Vt. 240; Dobbs v. Enearl, 4 Wis. 451. 60 Hinckley & Egery Iron Co. v. James, 51 Vt. 240. 61 McCorkle v. Herrman, 22 N. E. 948, 117 N. Y. 297; Tucker v. Ormes. 1 MacArthur, 652; Cotton v. Holden, Id. 463; Quimby v. Sloan, 2 E. D. Smith (N. Y.) 594; Ritchey v. Risley, 3 Or. 184. 62 Sisson v. Holcomb, 26 N. W. 155, 58 Mich. 634. 63 Green v. Green, 16 Ind. 253; Millikin v. Armstrong, 17 Ind. 456; Waldo v. Walters, Id. 534. 64 Cotton v. Holden, 1 MacArthur, 463. terials for which the lien is claimed were furnished, the lien would be treated as attaching when the claim was filed." 66 68 § 63. Under statutes which make the lien attach when the claim is filed, there can be no lien where the contracting owner dies before the claim is filed, or where he sells before that time,67 or where the building is totally blown down before the filing. And where the lien is claimed by a subcontractor a transfer of the contractor's debt, either by assignment" or garnishment,70 or the appointment of a receiver before the subcontractor's lien has become fixed by the filing of his claim, defeats his lien. Under an act providing, in regard to mechanics' liens, that "every building hereafter erected shall be subject to a lien in favor of the contractor, subcontractor," etc., provided that a certain notice be filed, and that the lien shall not be enforced for a greater sum than the amount of the original contract, a subcontractor who fails to file his claim until the principal part of the contract price has been paid by the owner to the contractor, in accordance with the contract, can only enforce his lien to the extent of the amount remaining unpaid.72 DIVISION IV. AT TIME OF SERVING NOTICE. In General. § 64. Where the statute authorizes the owner, on being notified by a subcontractor that he claims a lien, to retain the amount of such claim out of monev due or to become due the contractor, the lien of the subcontractor attaches when he gives such notice.73 In 63 Young v. Stoutz, 74 Ala. 574. 66 Dobbs v. Enearl, 4 Wis. 451; Brown v. Zeiss, Daly (N. Y.) 240; Crystal v. Flannelly, 2 E. D. Smith (N. Y.) 583; Tubridy v. Wright, 27 N. Y. Supp. 978, 7 Misc. Rep. 403. $7 Ernst v. Reed, 49 Barb. (N. Y.) 367; Quimby v. Sloan, 2 E. D. Smith (N. Y.) 594; Jackson v. Sloan, Id. 616; Loring v. Flora, 24 Ark. 151. 68 Schukraft v. Ruck, 6 Daly (N. Y.) 1. 69 Stevens v. Ogden, 29 N. E. 229, 130 N. Y. 182, reversing Stevens v. Reynolds, 7 N. Y. Supp. 771, 54 Hun. 419. To Coleman v. Railroad Co., 35 Pac. 656, 25 Or. 286. 71 McCorkle v. Herrman, 22 N. E. 948, 117 N. Y. 297. 72 Whelan v. Young, 21 D. C. 51. 73 Cahoon v. Levy, 6 Cal. 295; Brennan v. Marsh, 10 Cal. 435; Craig v. Smith, such case the subcontractor has no lien where the contractor's debt has been previously extinguished by payment in full, or has been transferred by assignment 75 or garnishment 76 before the subcontractor gives notice. 74 37 N. J. Law, 549; Copeland v. Manton, 22 Ohio St. 398; Dorestan v. Krieg, 29 N. W. 576, 66 Wis. 604. See post, § 367. 7+ Knowles v. Joost, 13 Cal. 620; Renton v. Conley, 49 Cal. 185; Wells v. Cahn, 51 Cal. 423. 75 Craig v. Smith, 37 N. J. Law, 549; Copeland v. Manton, 22 Ohio St. 398. 76 Dorestan v. Krieg, 29 N. W. 576, 66 Wis. 604; Conboy v. Fricke, 50 Ala. 414; Cahoon v. Levy, 6 Cal. 295. (68) Part II. MECHANICS' LIENS CONSIDERED WITH ERTY AFFECTED. CHAPTER V. CONTRACTUAL RIGHTS PROTECTED. DIVISION I. THE CONTRACT. 65. Only Contractual Rights Secured by Lien. 66-67. Elements of Contract. 68-69. Oral and Written Contracts. 70. Express and Implied Contracts. 71-72. Statutory Requirements. 73. Alteration of Contract. 74. Special Contractual Provisions. 75. Indefinite Agreements. 76. Contracts Payable in Property. DIVISION II. RECORDING THE CONTRACT. § 77. Construction of Statutes. 78. Sufficiency of Record. 82. Performance Prevented by Owner. 83. Excuses for Abandonment. 84-85. Contractor's Default as Affecting Subcontractors. DIVISION IV. QUANTUM MERUIT. 86. Failure without Fault to Complete Work. DIVISION I. THE CONTRACT. Only Contractual Rights Secured by Lien. § 65. Mechanics' liens, being based on contract, only secure debts due under some contract. Therefore a contractor who is wrongfully prevented by the owner from fully performing his contract has no lien for damages caused thereby, although he has a right of action for such damages.1 In like manner the subcontractor is not entitled to a lien for damages and expense incurred through idleness enforced, or on account of work made necessary, by the default or negligence of the principal contractor,2 nor can a subcontractor claim a lien for work which the contractor prevented him from doing. And, where the owner rescinds the contract before any work is done under it, the contractor's remedy is confined to his action for breach of contract. He cannot furnish work and materials after the rescission, and claim a lien therefor.* In a recent case it appeared that B. exchanged his farm for R.'s house and lot, it being agreed that R. should pay the mortgage on the house, and B. pay him the difference of $250 in the value of the premises in work and material to be furnished for a house being built by R. B. did the work and furnished the material, but R. failed to pay the mortgage. It was held that B. could not, for this reason, claim a mechanic's lien on the house to enforce payment for the work and material, for the reason that the debt was not for work done on the house but for failure to pay the mortgage. To entitle a mechanic to his lien, it is not necessary that every item furnished should be contemplated and spe 1 Morgan v. Taylor (Com. Pl.) 5 N. Y. Supp. 920; Wolf v. Horn, 33 N. Y. Supp. 173, 12 Misc. Rep. 100; St. John's & H. R. Co. v. Bartola, 9 South. 853, 28 Fla. 82; Hale v. Johnson, 6 Kan. 137. Lien claims do not include claims for "loss of time to men," or "delay, risk, and inconvenience to contract work." Lee v. Brayton (R. I.) 26 Atl. 256. And a subcontractor has no lien upon unliquidated damages due to the contractor on account of a violation of the contract on the part of the owner. Miner v. Hoyt, 4 Hill (N. Y.) 193; Hoyt v. Miner, 7 Hill (N. Y.) 525. 2 Tabor v. Armstrong, 12 Pac. 157, 9 Colo. 285. 3 Dennistoun v. McAllister, 4 E. D. Smith (N. Y.) 729. 4 Horr v. Slavik, 35 Ill. App. 140. 5 Brown v. Rodocker, 21 N. W. 160, 65 Iowa, 55. |