Gaastra v. Bishop's Lodge Co.

• Decision Date: 30 April 1931
• Docket Number: No. 3559.,3559.
• Citation: 299 P. 347,35 N.M. 396
• Court: New Mexico Supreme Court
• Parties: GAASTRA, GLADDING & JOHNSONv.BISHOP'S LODGE CO.

35 N.M. 396

299 P. 347

GAASTRA, GLADDING & JOHNSON

v.BISHOP'S LODGE CO.

No. 3559.

Supreme Court of New Mexico.

April 30, 1931.

Syllabus by the Court.

Architect who prepares and furnishes plans in accordance with which building is constructed is “performing labor upon” building within mechanic's lien statute (Comp. St. 1929, § 82-202).

An architect, in preparing and furnishing plans in accordance with which a building is constructed, is “performing labor upon” such building within the purview of section 82-202, N. M. Statutes Annotated, 1929.

Architect preparing and furnishing plans for building actually constructed in accordance therewith is entitled to lien, though he does not supervise construction (Comp. St. 1929, § 82-202).

An architect who, under contract with the owner, prepares and furnishes plans for a building which is actually constructed in accordance therewith, is entitled to a lien for his services, even though he does not supervise the construction of such building.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Suit by Gaastra, Gladding & Johnson, copartners, against Bishop's Lodge Company. Decree for plaintiffs, and defendant appeals.

Affirmed and remanded.

An architect who, under contract with the owner, prepares and furnishes plans for a building which is actually constructed in accordance therewith, is entitled to a lien for his services, even though he does not supervise the construction of such building.

Francis C. Wilson and Thos. H. Dodge, both of Santa Fé, for appellant.

David Chavez, Jr., and Willis N. Birdsall, both of Santa Fé, for appellees.

SADLER, J.

The appellant, Bishop's Lodge Company, a corporation, employed the appellees, Gaastra, Gladding & Johnson, copartners, as architects to furnish plans for certain improvements to be erected upon the premises of appellant. The contract between the parties called upon appellant to pay to appellees for plans only 3 1/2 per cent. of the total cost of the building. The appellees furnished plans only, so that this provision for compensation became operative.

The building was constructed in substantial compliance with the plans furnished by the appellees and at a total cost of $39,288.15. On November 5, 1928, the appellees filed with the county clerk of Santa Fé county, N. M., a claim of mechanic's lien to secure the sum of $1,375.09, being 3 1/2 per cent. of the total cost of said building. From the decree of the district court of Santa Fé county foreclosing such lien, the appellant has prosecuted this appeal. The appeal presents a single question for review, to wit: Is an architect who furnishes plans actually used in the construction of a building entitled to a lien upon the same for his services thus rendered?

The first impression, following a careful reading of Johnson v. McClure, 10 N. M. 506, 62 P. 983, is very apt to mislead one into the belief that this question is one easy of solution. A little delving into the authorities, however, will very quickly dispel this misapprehension. Indeed, there is a wide diversity of opinion apparent in the authorities upon the very question to be considered.

We naturally advert, as the first step in a consideration of this question, to our controlling statutory provision. Section 82-202, N. M. Statutes Annotated 1929, provides among other things as follows: “Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any *** building, *** or any other structure, *** has a lien upon the same for the work or labor done or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent, and every contractor, sub-contractor, architect, builder, or other person having charge *** of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purposes of this article.”

The decisions are not entirely harmonious upon the question whether the services of an architect as such are within the protection of mechanic's lien statutes, the right being denied in some jurisdictions on varying grounds. In Mitchell v. Packard, 168 Mass. 467, 47 N. E. 113, 60 Am. St. Rep. 404, and Stephens v. Hicks, 156 N. C. 239, 72 S. E. 313, 36 L. R. A. (N. S.) 354, Ann. Cas. 1913A, 272, the right to lien is denied an architect for plans and specifications upon the ground that the work of preparing same is not manual or onerous labor; whereas in Ames v. Dyer, 41 Me. 397, the ground for denying the lien is that such plans, or as it happened to be in that case, mould for a ship, do not enter into and became a part of the improvement.

But, regardless of this contrariety of opinion, it is now too well settled to admit of successful contradiction that the architect's right to a lien exists where his claim embraces both plans and superintendence.

“It may therefore be regarded as established by a decided preponderance of the cases that the right to a lien exists when the claim is for both plans and superintendence.” 5 C. J. 267.

The decision of our territorial Supreme Court in Johnson v. McClure, 10 N. M. 506, 62 P. 983, is in accord with this weight of authority. The diversity of opinion is most marked, however, where the claim is based upon the furnishing of plans used in the building, without supervision or superintendence by the architect. There is no decided weight of authority the one way or the other on this phase of the question.

In the jurisdictions indicated by the following cases, the lien was denied where the claim was based solely upon the furnishing of plans, or plans and specifications, without superintendence or supervision: Ames v. Dyer, 41 Me. 397; Rinn v. Electric Power Company, 3 App. Div. 305, 38 N. Y. S. 345; Thompson-Starrett Company v. Brooklyn Heights Realty Co., 111 App. Div. 358, 98 N. Y. S. 128; Stephens v. Hicks, 156 N. C. 239, 72 S. E. 313, 36 L. R. A. (N. S.) 354, Ann. Cas. 1913A, 272; Price v. Kirk, 90 Pa. 47; Bennett v. Frederick R. Gerry Co., 273 Pa. 585, 117 A. 345; Mitchell v. Packard, 168 Mass. 467, 47 N. E. 113, 60 Am. St. Rep. 404; Libbey v. Tidden, 192 Mass. 193, 78 N. E. 313, 7 Ann. Cas. 617; Palm Beach Bank & Trust Company v. Lainhart, 84 Fla. 662, 95 So. 122.

The following authorities support the architect's right to the lien for furnishing plans only, where the building is constructed in accordance with such plans, notwithstanding there is no supervision or superintendence by the architect furnishing the same: 5 C. J. 266; 40 C. J. 79; Henry & Coatsworth Co. v. Halter, 58 Neb. 685, 700, 79 N. W. 616; Gardner v. Leck, 52 Minn. 522, 54 N. W. 746; Lamoreaux v. Andersch, 128 Minn. 261, 150 N. W. 908, L. R. A. 1915D, 204; Parsons v. Brown, 97 Iowa, 699, 66 N. W. 880; Fitzgerald v. Walsh, 107 Wis. 92, 82 N. W. 717, 81 Am. St. Rep. 824; Hornlein v. Bohlig, 37 Cal. App. 646, 174 P. 697. See, also, the cases of Marchetti v. Sleeper, 100 Conn. 339, 123 A. 845, and Read v. Whitney, 45 Ont. L. R. 377, where there were both plans and supervision, yet in which the courts indicate the lien may be sustained for the plans alone without supervision. Nimmons v. Lyon, 197 Ill. App. 376, and Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055, uphold the claim of lien for plans alone, but under a statute specifically covering the services of an architect.

Well-edited annotations of this subject, prepared at different stages in the development of the law upon the same, may be found in 16 L. R. A. 600 (1892); 36 L. R. A. (N. S.) 354 (1911); 60 A. L. R. 1267 (1927).

It will be observed from an examination of the cases hereinabove cited as well as from a classification of the jurisdictions on either side of the proposition in 60 A. L. R. 1267-1269, that there is really no preponderance of authority either way upon the question to be decided in this case. It therefore must be determined which line of decision is the better supported in reason and upon principle.

It cannot be gainsaid that the architect plays a most important part in modern building operations. Even so long ago as the date of the enactment of our statute creating a mechanic's lien (chapter 16, Laws of 1880), the architect had attained such importance in the building trades as to cause the Legislature to constitute him, along with contractors and subcontractors, when in charge of any building operations, agent of the owner for purposes of the statute.

The courts quite generally have recognized the importance of the architect in building operations, and have extended to him the protection of the statute.

“The work or services of an architect are generally necessary in the construction of buildings and other works; not as necessary, in one sense, nor at all of the same character, as the work of a hod-carrier, for instance, in buildings of brick; but often, if not always, profitable to the owner in the greater enhancement of the value of his property in the erection of a better building through the architect's skill and services; and, though his work is not of the afterwards visible mechanical character, it is none the less advantageous work done in erecting the building. ***”

“I can see no reason why superintending the building is any less ‘service upon’ the building than carrying bricks and mortar to the bricklayers, and I agree with the Vice-Chancellor (22 Gr. 315, 316) that drawing plans etc. is an essential thing ‘to be done in the construction of the work,’ and that he who draws such plans for a building ‘actually does work upon it as if he had carried a hod.”’ Read v. Whitney, 45 Ont. L. R. 377.

In Phœnix Furniture Co. v. Put-in-Bay Hotel Co. (C. C.) 66 F. 683, 685, it was sought to exclude from the language of a statute similar in purport to ours, the services of an architect who both furnished plans and superintended construction, upon the ground that the word “...