Bohn v. McCarthy

• Decision Date: 30 December 1881
• Citation: 11 N.W. 127,29 Minn. 23
• Parties: BOHN AND ANOTHER v MCCARTHY AND ANOTHER.
• Court: Minnesota Supreme Court

29 Minn. 23

11 N.W. 127

BOHN AND ANOTHERvMCCARTHY AND ANOTHER.

Supreme Court of Minnesota.

Filed December 30, 1881.

Appeal from judgment of district court, Ramsey county.

C. D. Kerr, for respondent.

O'Brien & Wilson, for appellant.

DICKINSON, J.

By amendment in 1878 (chapter 3, Laws 1878) the statute relating to mechanics' liens (Gen. St. 1878, c. 90) was extended in favor of subcontractors and laborers in the employ of those contracting directly with the owner for the construction or repair of the various structures in the statute mentioned, (excepting railway structures, in respect to which specific provision is made.) As amended, section 1 of the statute provides for a lien in favor of parties furnishing materials or performing service under a contract or agreement with the owner of the property.

Section 2, so far as need be stated, is as follows: “Every mechanic or other person doing or performing any work towards the erection, alteration, or repair of any house, mill, manufactory, or other building, *** or furnishing any material for the construction, alteration, or repair of such building, *** whether such work is performed as journeyman, laborer, car-man, subcontractor, or otherwise, shall have a lien for the value or contract price of such labor and materials upon such house, mill, manufactory, or other building, *** together with the right, title, or interest of the person owning such house, mill, manufactory, or other building and appurtenances, on and to the land upon which the same is situated, not exceeding” a prescribed area.

Section 3 enacts that “upon entering into a contract to do any work or furnish any materials for which a lien might accrue under section 1 of this chapter, if the contractor will enter into a bond with the owner, for the use of all persons who may do work or furnish materials pursuant to such contract, conditioned for the payment of all just claims for such work or materials as they become due, (which bond shall be in such an amount, not less than the price agreed to be paid for the performance of such contract, and with such sureties as shall be approved by the judge of the district court, ***) and shall file the same in the office of the register of deeds of the county, *** then no lien shall attach in favor of the persons mentioned in section 2 of this chapter. Such sureties shall justify in double the amount of the bond so given, but such bond shall not operate to relieve from liability the property upon which such labor or material shall be expended, unless a notice, setting forth the existence of such bond, be kept conspicuously posted about the premises during the performance of such labor, and at the time of furnishing such material.”

Section 4 provides that such a bond may be made and filed at any time after the making of the contract, and that when so done it shall discharge such liens as shall have theretofore accrued, and prevent the accruing of others thereafter.

Section 5 provides that any person entitled to a alien under the provisions of section 2 of this chapter shall be considered a party in interest in said bond, and may bring an action thereon in his own name for the value or contract price of labor done or materials furnished under the provisions of the contract with the owner.

Section 6: “Any person entitled to a lien under the provisions of section 2 of this chapter shall make an account in writing of the items of labor, skill, materials, or machinery furnished, *** and, after making oath thereto, shall, within 60 days after...