Duignan v. Montana Club

• Decision Date: 13 May 1895
• Citation: 40 P. 294,16 Mont. 189
• Parties: DUIGNAN et al. v. MONTANA CLUB et al.
• Court: Montana Supreme Court

40 P. 294

16 Mont. 189

DUIGNAN et al. v. MONTANA CLUB et al.

Supreme Court of Montana

May 13, 1895

Appeal from district court, Lewis and Clarke county; Horace R. Buck Judge.

Action by Henry Duignan and others against the Montana Club and others to foreclose a mechanic's lien. From a judgment for plaintiffs, defendants appeal. Remanded.

Thomas C. Bach and Massena Bullard, for appellants.

E. A Carlton, for respondents.

DE WITT, J.

This action was brought to obtain a judgment for materials furnished one of the defendants, and to foreclose a lien against the clubhouse of the defendant the Montana Club. There was a judgment for the plaintiffs. The defendant the Montana Club appeals. The appeal is here upon the judgment roll only. The Montana Club contracted with D. P. Wortman to erect the building. Wortman contracted with William Harrison and William Harrison with the Helena Co-operative Granite & Sandstone Company, which company contracted with the plaintiffs for supplying certain stone. The plaintiffs are therefore subcontractors in the third degree. The appellant contends that the lien law of this state does not give a lien to a subcontractor beyond the first degree; that is, beyond the person subcontracting with him who is the original contractor with the owner. It was decided in Merrigan v English, 9 Mont. 113, 22 P. 454 (a decision with which we are satisfied), that a subcontractor has a lien in this state. We refer to that case for a careful and accurate analysis of the history of our legislation upon the subject of mechanics' liens. The fact for decision, however in that case, was only the lien of a first subcontractor. We observe that decisions and text writers have construed that case as holding that subcontractors of all degrees have a lien. While there may be language in the opinion indicating that view, the facts of the case do not extend the decision that far.

We will start in this consideration with the declaration of law, as clearly set forth in Merrigan v. English, that the first subcontractor has a lien. The inquiry, then, is, does our law also extend the lien to contractors under the first subcontractor. Appellants' counsel has made a very able argument against that position. We will not restate the history and the law as found in Merrigan v. English, but simply refer to that opinion. Counsel calls our attention to the fact, as noted in that case, and as discussed generally in the decisions and by text writers, that two systems of mechanics' liens are adopted in the different states of the Union,--one, the New York or subrogation system; the other, the Pennsylvania or direct lien system. The system of this state up to 1887 was that of New York. Since the legislation of that year it has been that of Pennsylvania. See the subject fully developed in Merrigan v. English. Counsel then points out that in states holding the New York system a subcontractor of a subcontractor had no lien, citing Kirby v. McGarry, 16 Wis. 70; Harbeck v. Southwell, 18 Wis. 439; Wood v. Donaldson, 17 Wend. 550; Turcott v. Hall, 8 Ala. 525; Stephens v. Stock-Yard Co., 29 Ohio St. 227; Rothgerber v. Dupuy, 64 Ill. 452; Berkowsky v. Sable, 43 Ill.App. 411. Counsel next argues that, on the reasoning of the decisions in these states, it should also be held that there was no lien to a subcontractor of a subcontractor in this state prior to the law of 1887. But, under both the old law and the new, there is a lien, at least to the first subcontractor. Merrigan v. English, supra. It is also held in Merrigan v. English that the change made in the law in 1887, in discarding the New York system and adopting the Pennsylvania system, did not change the classes of persons to whom a lien was given in this state, but changed only the method by which such persons could secure their liens.

But the question now arises, was there not a lien to a subcontractor of a subcontractor under the old law? In the cases which counsel cites from states practicing under the New York system, he does not point out, nor do we find, a statute similar to section 845 of our law prior to 1887, which is the same as section 1391 of the law since that date. That section is as follows: "All persons furnishing things, or doing work, as provided for by this chapter, shall be considered subcontractors, except such as have therefor contracts directly with the owner or proprietor, his agent or trustee." Comp. St. div. 5, § 1391. The cases which counsel cites do not construe such a section as this. Those decisions reason upon the applicability of their own statutes, as they find them. There is absent from the decisions of those states a direct statutory declaration as to who subcontractors are; but such declaration we find in our statute, as just quoted. It being conceded under the authority of Merrigan v. English that a subcontractor had a lien under the old law, as well as the new, who is a subcontractor? The statute answers. While it is held by the authorities that, to give a subcontractor of a subcontractor a lien, the declaration of such intention must be very plain and specific, we are of opinion that the declaration of our statute is perfectly clear, and that its meaning cannot be doubted. "All persons furnishing things or doing work" is the language. A subcontractor in the second, third, or any degree is one of the persons "furnishing things or doing work." Looking further at this statute, the language is "furnishing things, or doing work, as provided for by this chapter." As provided for by this chapter is: "Every mechanic, builder, lumberman, artisan, workman, laborer or other person, who shall do or perform any work or labor upon, or furnish any material, machinery or fixtures for any building, erection, bridge, flume, canal, ditch, mining claim, quartz lode, ranch, city or town lots, or other improvements upon land, or for repairing the same, upon complying with the provisions of this chapter, shall have for his work or labor done, or material, machinery, or fixtures furnished, a lien upon such building, bridge, flume, canal, ditch, mining claim, quartz lode, ranch, city or town lots or other improvements, to secure the payment of such work or labor done, or material, machinery, or fixtures furnished." Rev. St. 1879, § 820. Therefore, all persons furnishing things or doing work as provided by that chapter are subcontractors. A subcontractor of a subcontractor may furnish things or do work as provided for in the chapter. Therefore, a subcontractor of a subcontractor is included by the statute (section 845) as simply a subcontractor.

At this point we notice that counsel for appellants argue, with some reason, that, if the subcontractor of a subcontractor had a lien under the old law, other sections of the chapter on liens seem to be addressed peculiarly to the method of securing and enforcing liens by original contractors and first subcontractors. Whatever force there may be in this suggestion, we are of opinion that it cannot offset the separate and plain and specific definition in the statute of who a subcontractor is. In fact, we cannot intelligently read section 845 of the old law or section 1391 of the new law in any other manner than a declaration that all persons who furnish the things or do the work are to be considered subcontractors. If we give the construction which counsel contends for to this section, then it would read: "All persons furnishing things or doing work, except second and third and later subcontractors, shall be considered subcontractors, except, again, the original contractor with the owner." But all persons furnishing things, etc., except the second and third subcontractors and the original contractor or contractors, need no definition to define them, for they are first subcontractors without definition. Counsel's interpretation of the section would simply reduce it to reading that subcontractors are subcontractors. We cannot consent to this construction. We cannot hold any other opinion but that under the old law a lien was given to subcontractors of lower degree than the first. It is then important to note that this section 845 was carried into the new laws enacted in 1887, and appears in the identical language as section 1391 of the Compiled Statutes of 1887.

It may be pertinent to observe that section 1391 was enacted by our legislature after many decisions had been made by courts interpreting lien laws to the effect that, to extend the...