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except in cases where the statute requires a written contract, the lien may be claimed whether the contract is express or implied.*3 In at least one state the legislature has been so solicitous to include all kinds of contracts that it expressly declares that the mechanic shall have a lien whether the contract be "express or implied or partly expressed and partly implied." Where material is to be furnished from time to time as ordered, and charged for at reasonable prices, the contract is an implied one.45 In Tennessee, under a statute which gives a lien on the condition that the claimant has made a "special contract with the owner of the lot of ground," it has been held that nothing more is required than an employment and an undertaking to do the work. It has, however, been held in Alabama that a statute giving a lien for the price agreed upon, or the compensation to be paid, applied only to express contracts.1

46

Statutory Requirements.

§ 71. Where the statute declares that the contract must conform to certain conditions, a contract which does not conform thereto is, of course, insufficient to sustain a lien. But a substantial compliance is sufficient. Thus a contract providing that the owner should pay, upon the written order of the contractor, the material men when the materials were used in the building, and also pay the mechanics and laborers at the end of every week for work performed, has been held specific enough as to time and amounts to comply with a statute requiring the contract price to be made payable in installments at specified times after commencement of the

or by virtue of a contract" was held broad enough to include implied contracts. Neilson v. Railroad Co., 1 N. W. 434, 51 Iowa, 184.

43 Williams v. Canal Co., 22 Pac. 806, 13 Colo. 469; Thielman v. Carr, 75 Ill. 385; Neilson v. Railroad Co., 1 N. W. 434, 51 Iowa, 184; Foerder v. Wesner, 9 N. W. 100, 56 Iowa, 157; Carney v. Cook, 45 N. W. 919, 80 Iowa, 747; SturBruce v. Berg, 8 Mo. App. 206; O'Brien v. Hanson,

ges v. Green, 27 Kan. 235;

9 Mo. App. 545; Muldoon v. Pitt, 54 N. Y. 269; Hazard Powder Co. v. Loomis,

2 Disn. (Ohio) 544; Choteau v. Thompson, 2 Ohio St. 114.

44 Rev. St. Ill. 1893, c. 82, § 1.

45 Harwood v. Brownell, 32 Ill. App. 347.

46 Barnes v. Thompson, 2 Swan (Tenn.) 313.

47 Copeland v. Kehoe, 67 Ala. 594.

work, or completion of specified portions, or of the whole work.48 And it has been held that a contract for erecting a building, which provides that 25 per cent. of the sum to be paid shall remain unpaid until 35 days after completion of the building, and the remainder be paid in partial payments equal to 75 per cent. of the value of the work and material done and furnished at the time of such payments, sufficiently complied with a statutory requirement that the contract price shall, by the terms of the contract, be made payable in installments at specified times after commencement of the work, and on the completion of the work, provided that at least 25 per cent. of the whole contract price shall be made payable at least 35 days after final completion of the contract.49 In another case it appeared that the contract provided for the payment of $5,500 for all work and material, three-fourths payable in installments as the work progressed, the other four 35 days after completion, with an obligation to pay for materials when used, and work as it was rendered weekly. It was held that such contract was a substantial statement of "the amounts of all partial payments, together with the times when such payments shall be due and payable," required by the statute.50

The California statute provides that at least 25 per cent. of the whole contract price of a building shall be made payable at least 35 days after the final completion of the work. Under this statute it has been held that a contract providing for final payment in 30 days after the completion of the work is not invalid, as the statute requires liens to be filed within 30 days after completion of a building, and no prejudice could arise; 51 and that a contract allowing payment before expiration of the 35 days if the contractor shows receipts, and gives bonds that all bills are paid, and that no claims.

48 Reed v. Norton, 26 Pac. 767, 90 Cal. 590.

49 Dunlop v. Kennedy (Cal.) 34 Pac. 92. The fact that the building contract, in providing for the payments, retains, until 35 days after the completion of the work, slightly less than the 25 per cent. of the contract price required by statute, does not render the owner personally liable for all labor and materials furnished, especially when more than 25 per cent. was in fact actually retained. Stimson Mill Co. v. Riley (Cal.) 42 Pac. 1072.

50 Reed v. Norton, 26 Pac. 767, 90 Cal. 590.

1 San Diego Lumber Co. v. Wooldredge, 27 Pac. 431, 90 Cal. 574.

斷

against the premises exist, is valid; 52 but that a contract which declares that 75 per cent. of the cost shall be paid as the work progresses is void, since cost and contract price are not necessarily identical. 53

§ 72. Under an Illinois statute which only allowed liens when the contract was express, and declared that no lien should be created if the time stipulated for the completion of the work was beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for completion, it was held that where the contract did not specify the time within which the work was to be completed, or within which the money was to be paid, there could be no lien.54 But, after the law was amended so as to allow liens on implied contracts when the work is completed within one year after its commencement, it was held that where there was a written contract in which no time for completion was specified there might still be a lien provided the work was in fact completed within a year. This was decided on the theory that where some of the terms of the contract are expressed in the writing, and others are left to be supplied by implication, the contract, at least so far as these terms are concerned, will be considered as an implied one.56 But where the lien claimant alleges an express contract, 57 or where it does not appear that the work was in fact completed within one year,' a written contract from which it does not appear the work was to be completed within three years from its commencement is not sufficient to support a lien. It has been held under this statute that a contract between the lessee of fair grounds

58

55

52 Yancy v. Morton, 29 Pac. 1111, 94 Cal. 558.

53 Willamette Steam-Mills Lumbering & Manuf'g Co. v. Los Angeles College Co., 29 Pac. 629, 94 Cal. 229.

54 Cook v. Heald, 21 Ill. 425; Cook v. Vreeland, Id. 431; Senior v. Brebnor, 22 III. 252; Coburn v. Tyler, 41 Ill. 354.

55 Roach v. Chapin, 27 Ill. 194; Clark v. Manning, 90 Ill. 380, overruling Fish v. Stubbings, 65 Ill. 492, and Powell v. Webber, 79 Ill. 134; Driver v. Ford, 90 Ill. 595; Graham v. Meehan, 4 Ill. App. 522; Austin v. Wohler, 5 Ill. App. 300. 56 Orr v. Insurance Co., 86 Ill. 260; Lehman v. Clark, 33 Ill. App. 33.

57 Belanger v. Hersey, 90 Ill. 70.

58 Adler v. Exposition Co., 18 N. E. 809, 126 Ill. 373; Younger v. Louks, 7 Ill. App. 280.

and a lumber dealer that the latter shall furnish from time to time, as shall be called for by the lessee's carpenters, such articles as may be needed for improvements on the grounds, no particular amount, kind, quality, or price being mentioned, nor any time for delivery or payment specified, does not comply with the statutory requirements as to express contracts,59 and that the same objection applied to a contract made in April, 1886, to furnish drawings and specifications for certain buildings, superintend their erection, and audit and settle accounts, and to act as supervising architect in the arrangement and improvement of the grounds during the summer of 1886, since there was nothing to show that the buildings would be completed at any specified time."" It has also been held that where a contract for the erection of a building provided for the assignment by the owner to the builder of a title bond on the premises after the expiration of one year, for the security of the unpaid installments, such assignment not being a condition to any extension of the time of payment, there was no lien, because the last payment did not fall due within one year of completion of the work. But, where the contract provided that the owner contracted to give in payment a note payable one year after the work was completed, it was held that this did not invalidate the lien on the theory that allowance of days of grace on the note would extend the time beyond the year, since it would be presumed that the contract meant that the note should only run one year, including the three days of grace.62

Alteration of Contract.

63

61

§ 73. Whether or not the contract under which the work is done is sufficient to sustain a lien depends upon the terms of the contract when the work is begun. Thus, where the contract as originally made provided that payments should be made within the time limited by the statute, a subsequent extension beyond such time does

59 Haines v. Chandler, 26 Ill. App. 400.

60 Adler v. Exposition Co., 26 Ill. App. 528.

61 Beasley v. Webster, 64 Ill. 458.

62 Stout v. Sower, 22 Ill. App. 65, affirmed in Paddock v. Stout, 13 N. E. 182, 121 Ill. 571.

63 Chisholm v. Randolph, 21 Ill. App. 312.

64

not vitiate the lien. Conversely, where the contract provided that on completion of the work a note should be given running beyond the statutory period, the fact that no such note was given does not create a right to a lien.65 Where the contract contains no provisions creating a right to interest, taking notes providing for payment of interest and attorney's fees does not allow the mechanic to include such interest and attorney's fees in his lien, since his rights are measured by his contract."

Special Contractual Provisions.

69

§ 74. Special provisions of the contract must, of course, be complied with, in order to entitle the mechanic to a lien. Thus, where a building contract provides that the price of extra work and material, unless agreed upon, should be settled by arbitration, a lien therefor cannot be enforced, in the absence of such agreement or settlement.67 Where the contract provides that the contractor shall be paid only on the architect's certificate, such certificate, given in pursuance of the contract, is, in the absence of fraud or mistake, binding on the lien claimant,68 and its absence is fatal to his lien. Where the contract for building a church provides that no charge for extras shall be allowed except upon estimates and certificates of the architect and the building committee, a subcontractor cannot enforce a lien for extras without showing such estimates and certificates.70 Under a provision that no claim shall be made for extra work which is not made part of the contract by indorsement, no lien can be claimed for extra work, in the absence of such indorsement." Under a statute giving laborers and material men liens where a house

64 Chisholm v. Williams, 21 N. E. 215, 128 Ill. 115; Paddock v. Stout, 13 N. E. 182, 121 Ill. 571; Stout v. Sower, 22 Ill. App. 65.

65 Simon v. Blocks, 16 Ill. App. 451.

66 Bissell v. Lewis, 9 N. W. 177, 56 Iowa, 236. The contest in this case was not between the mechanic and the owner, but between the mechanic and a mortgagee whose mortgage was recorded before the notes were given.

67 Boots v. Steinberg, 58 N. W. 657, 100 Mich. 134.

GS Ewing v. Fiedler, 30 Ill. App. 202.

69 Wolf v. Michaelis, 27 Ill. App. 336.

70 Shaw v. Baptist Church, 46 N. W. 146, 44 Minn. 22.

71 Lee v. Brayton, 26 Atl. 256, 18 R. I. 232.