Cudworth v. Bostwick

• Decision Date: 17 March 1899
• Citation: 69 N.H. 536,45 A. 408
• Court: New Hampshire Supreme Court
• Parties: CUDWORTH et al. v. BOSTWICK et al.

45 A. 408

69 N.H. 536

CUDWORTH et al.

v. BOSTWICK et al.

Supreme Court of New Hampshire. Grafton.

March 17, 1899.

Action by Cudworth & Noyes against Bostwick & Turner and another. Case discharged.

Assumpsit to enforce a subcontractors' lien. Facts found by a referee: Bostwick & Turner, the contractors, employed the plaintiffs to erect a building upon land of the Limerock National. Bank. There was never anything due to the principal contractors. After notice of the subcontractors' claim, the owner as an accommodation, and not because it was due under the contract, paid the principal contractors $200.

Bingham, Mitchell & Batchellor and George H. Bingham, for plaintiffs.

James W. Remick, for defendant Limerock Nat. Bank.

PEASLEE, J. "If a person shall * * * perform labor or furnish materials * * * for erecting a house or other buildings, * * * by virtue of a contract with the owner thereof, he shall have a lien thereon." Pub. St. c. 141, § 10. "If a person shall * * * perform labor or furnish materials * * * for any of the purposes specified in the three preceding sections, by virtue of a contract with an agent, contractor, or sub-contractor of the owner, he shall have the same lien as provided in said sections, provided he gave notice in writing to the owner or person having charge of the property." Id. § 13. "Any person giving notice as provided in the two preceding sections, shall, as often as once in thirty days, furnish to the owner or person having charge of the property on which the lien is claimed, an account in writing of the labor performed or materials furnished during the thirty days; and the owner or person in charge shall retain a sufficient sum of money to pay such claim, and shall not be liable to the agent, contractor, or sub-contractor therefor, unless the agent, contractor, or subcontractor shall first pay it." Id. § 15. Do the words "the same lien," as used in section 13, mean the lien by virtue of the principal contract, or an independent lien for the sum due under the subcontract, or the value of the labor and materials furnished? If the latter is the true construction, section 13 should read, "a like lien." If the subcontractor's lien is for the value of what he has put into the building, it is not the same lien, although it is of like kind. Section 15, which was a part of the original subcontractor's lien law in this state (Laws 1871, c. 1), affords further evidence of legislative intention. It provides that the owner shall retain a sufficient sum to pay the subcontractor, and shall not be liable to the principal contractor therefor. To retain is to keep in possession or hold back; that is, the owner is to hold back from the principal contractor the amount due the subcontractor. He cannot retain that which he does not possess. The provision that under these circumstances the owner shall not be liable to the principal contractor for the amount retained, unless the latter...