Green v. Williams

• Decision Date: 08 February 1893
• Parties: GREEN v. WILLIAMS et al.
• Court: Tennessee Supreme Court

21 S.W. 520

92 Tenn. 220

GREEN v. WILLIAMS et al.

Supreme Court of Tennessee.

February 8, 1893

Error to circuit court, Williamson county; H. H. Cook, Special Judge.

Action by Green Williams and others against Jo Green to enforce a mechanic's lien. From a judgment in plaintiffs' favor, defendant brings error. Affirmed.

John H Henderson, for plaintiff in error.

H. P Fowlkes and S. S. House, for defendants in error.

LURTON C.J.

This is an action at law to set up and enforce a "furnisher's" lien for materials used upon premises now owned by the plaintiff in error, Green. A jury was waived, and there was a judgment declaring the lien. Wall, the then owner of the premises, contracted with one Vaughn to make certain repairs and alterations, and to furnish the materials. Vaughn agreed to take in payment an order on one of Wall's debtors in part settlement, and that Wall should work out the rest of his bill. Vaughn, on his own credit, contracted with the plaintiff Williams for the materials, and that they should be delivered on Wall's premises. Pending the improvements, Wall sold the premises to the plaintiff in error. Part of the materials were delivered before this sale, and part after. Upon the completion of the work, Vaughn having failed to pay the subcontractor, Williams, for the materials so furnished, the latter, within the time required by the statute, gave notice of his claim to a lien on the premises, both to Wall and Green, his vendee. Wall and Vaughn being insolvent, Williams seeks to enforce his lien as a furnisher against the building to which they were furnished. It appears that, when Green bought, he went to Vaughn, the contractor, to ascertain whether he claimed any lien as a mechanic, with a view of withholding from his vendor a sufficiency of the purchase price to protect himself. Vaughn informed him as to the arrangement with Wall in regard to payment, and assured him that he claimed no lien. Under this assurance the vendee paid the purchase money in full, and took deed. It is clear that under this state of facts, Vaughn could not assert any lien as against such a purchaser. But the lien in favor of the furnisher of materials is distinct from, and independent of that the original contractor. The statute gives the lien to several classes of persons, and the lien of each depends upon the statute, and is not derived from the right, or dependent upon the existence or nonexistence of the lien, of any other. The contractor may by contract or conduct waive or estop himself; but his subcontractor may, nevertheless, bring himself within the protection of the statute, and independently assert a lien for his work or materials. That Williams sold these materials to the contractor, and upon the personal credit of the contractor, does not prevent the creation of the statutory lien, unless he expressly waived the lien, or has by his conduct estopped himself from its assertion. Nothing of that sort appears in the evidence. Green knew nothing of Vaughn's contract for materials with Williams. Williams was equally ignorant of the sale by Wall to him. He did nothing to mislead the purchaser. He did nothing to cut himself off from the assertion of any lien given him under the statute.

But it is insisted very earnestly for plaintiff in error that he purchased the property without any notice of Williams' claim; that no notice was given him, and the claim remained unregistered until after he had bought and paid for the property. It is also shown that he knew nothing of the delivery of materials after he bought until after delivery and after the materials had been worked into the house. The notice required by the statute was given within 30 days after the completion of the contract, and, we may add, within 30 days after the delivery of the last of the materials and he had contracted to furnish. His claim was then registered as required by the statute, and suit brought within 90 days. Does the lien begin only when the notice has been given, or does it begin when the delivery of the materials begins? Upon the solution of this depends the judgment. Under the old act of 1845-6, c. 118, carried into Thomp. & S. Code, at section 1986, the lien given by the act of 1825, c. 37, (being section 1981, Thomp. & S. Code,) was extended to every person "employed by such mechanic, founder, or machinist to work on the building, *** or to furnish materials, if, at the time he begins to work or furnishes materials, he notifies the owner of the property, in writing, of his intention to rely upon the lien." It is clear that, under this original act, the lien began when the delivery of materials began, provided notice was then given. If there was any delay in giving the notice, the lien was lost Shelby v. Hicks, 5 Sneed, 197. To meet such a result, section 1986, Thomp. & S. Code, was so amended by the act of 1881, c. 67, § 2, as to add to it the following: "Such person shall also have a lien, if such written notice is served on the owner during the progress of the work, or after its completion, and before the contractor has been paid, but only to the extent of any sum or balance then due, or to become due, under said contract." Here it is seen that the effect of the failure to give notice of the intent to rely upon the lien at the commencement of the delivery was to limit the lien to the balance due, or to become due, to the original contractor. This amendment of the Code was itself amended by the act of 1889, c. 103, so as to give the same lien originally extended to the contractor to all such subcontractors as are mentioned in section 1986 and...