Baldwin Locomotive Works v. Edward Hines Lumber Co.
| Decision Date | 18 December 1919 |
| Docket Number | No. 22922.,22922. |
| Citation | 125 N.E. 400,189 Ind. 189 |
| Parties | BALDWIN LOCOMOTIVE WORKS v. EDWARD HINES LUMBER CO. et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; A. D. Bartholomew, Special Judge.
Suit by the Edward Hines Lumber Company and others against the Baldwin Locomotive Works. Judgment for plaintiffs, and defendant appeals. Reversed, with instructions.
For dissenting opinion, see 127 N.E. 275.
Superseding former opinion, 116 N. E. 739.
Bomberger, Peters & Morthland, of Hammond, for appellant.
Appellees, materialmen brought suit against appellant, owner, to enforce mechanics' liens. The issues were formed by complaint of the first appellee named and cross-complaints of the other three, which complaint and cross-complaints appellant answered by general denial and a second paragraph of special answer, which set up the contract between appellant and appellant's contractor. The court sustained a demurrer to each paragraph of special answer, which ruling appellant assigns as error. The trial resulted in a judgment in favor of each of the appellees and a foreclosure of liens.
The contract, made a part of the special answer, contained the following stipulation:
“No contractor, subcontractor, materialman, or other person furnishing labor or materials for the work herein provided for, or for any alterations or additions thereto, shall have any right to file any mechanic's lien, or claim of any sort or kind against the premises, or any part thereof.”
[1] This presents the question of whether a direct and positive covenant in the principal contract precludes appellees from having a lien under the statute. While the lien arises independent of contract, it does not arise in spite of contract; nor does it arise where there is no contractual relation, mediate or immediate, between the person claiming the lien and the owner. The owner must consent to have the work done, or the material furnished, before the lienor may invoke the statute. We can conceive of no case in which this consent does not arise from contract, express or implied, mediate or immediate. Therefore we make no distinction between direct and derivative right conferred by the statute. (The statute in this state is one of the so-called direct.) If there must be authority from the owner and he who seeks to enforce a lien must show that he had the consent of the owner directly or indirectly to furnish the material or perform the labor on the owner's premises before he may have a lien, then the question is, Can the owner so curtail the authority of his contractor as to limit the right of all of those who touch the premises by virtue of the authority given the contractor, that their rights under the statute may be cut off?
The better rule seems to be that, where there is a direct and positive covenant in the principal contract against liens, it precludes all who work under, or furnish material to, the principal contractor. Schroeder v. Galland, 134 Pa. 277, 19 Atl. 632, 7 L. R. A. 711, 19 Am. St. Rep. 691;Geo. B. Swift Co. v. Dolle, 39 Ind. App. 653, 80 N. E. 678;Carson, etc., Co. v. Cleveland, etc., R. Co., 57 Ind. App. 357, 105 N. E. 503. The cases which seem to be at variance to this and are so cited sometimes, when examined, disclose that there was not a direct and positive covenant against liens, but some stipulation by which the contractor agreed to indemnify the owner against liens (Whittier v. Wilbur, 48 Cal. 175;Jarvis v. State Bank, 22 Colo. 309, 45 Pac. 505, 55 Am. St. Rep. 129), or to permit the owner to retain payment until liens were discharged (Evans v. Grogan, 153 Pa. 121, 25 Atl. 804;Taylor v. Murphy, 148 Pa. 337, 23 Atl. 1134, 33 Am. St. Rep. 825).
[2] All decisions concede that a subcontractor or materialman could not furnish material or help to erect a structure different than that provided for in the principal contract, and still be permitted to enforce a lien. In other words, the decided cases are, so far as the nature of the structure is concerned, that those who come in under the principal contract are bound to know what is in it. If they are bound to look to the principal contract for this authority, then it is difficult to see why they...
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Hutton v. McGuire
...on the theory that while the lien does not arise out of a contract, nevertheless it does not arise where no contractual relation exists. The Baldwin case was in 1920, and the act of 1921, above quoted, was passed in view of that decision, modifying the Mechanic's Lien Statute with reference......
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...contract against liens of which it had knowledge and by which it was bound, was not entitled to a lien (Baldwin Locomotive Wks. v. Hines et al., 189 Ind. 189, 125 N. E. 400, 127 N. E. 275;Dux v. Rumsey, 190 Ill. App. 234); and, second, by its contract waived and was not entitled to a lien o......
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