Hightower v. Bailey

• Decision Date: 29 March 1900
• Citation: 56 S.W. 147,108 Ky. 198
• Parties: HIGHTOWER v. BAILEY et al. [1]
• Court: Kentucky Court of Appeals

56 S.W. 147

108 Ky. 198

HIGHTOWER v. BAILEY et al. ^[1]

Court of Appeals of Kentucky.

March 29, 1900

Appeal from circuit court, Henderson county.

"To be officially reported."

Action by F. M. Hightower against Bailey & Koerner to enforce a lien. Judgment for defendants, and plaintiff appeals. Affirmed.

R. H Cunningham, for appellant.

Yeaman & Yeaman, for appellees.

HAZELRIGG C.J.

Walling & Co., desiring to build a grain elevator on their lot in the city of Henderson, Ky. contracted with Bailey & Koerner to furnish all the necessary material and to construct the improvement. Bailey & Koerner, who were builders and contractors, contracted with H. W. Clark, Jr., a lumber merchant at Henderson, for a large quantity of the lumber necessary for the building. Clark then contracted with Hightower, a lumber dealer at Ragan, Ala., for a quantity of lumber, for the purpose of using it in filling his contract with Bailey & Koerner. On the completion of the work it appears that Bailey & Koerner have paid Clark in full for the lumber furnished under his contract, including the Hightower lumber, but Clark has failed to pay Hightower. The latter has therefore brought this action in the Henderson circuit court claiming a lien on Walling & Co.'s lot and building for what Clark owes him. It is the contention of counsel that under our statute Hightower, as a material man, has this lien, without regard to the state of the account between Walling & Co. and Bailey & Koerner, or between the latter and Clark. But because there was no averment in Hightower's petition, as there could not truthfully have been, to the effect that Bailey & Koerner or Walling & Co. were indebted to Clark, the chancellor dismissed the petition on demurrer,--holding that while the statute as amended by the act of March 21, 1896 (Ky. St. § 2463), in terms gave Hightower the lien, the statute as so amended is unconstitutional; and this is the first question considered. The statute is as follows: "A person who performs labor or furnishes materials in the erection, altering or repairing a house, building or other structure, or for any fixture or machinery therein, or for the excavation of cellars cisterns, vaults, wells or the improvement, in any manner of real estate by contract with, or by the written consent of the owner, contractor, sub-contractor, architect or authorized agent, shall have a lien thereon, and upon the land upon which said improvement shall have been made or on any interest such owner has in the same, to secure the amount thereof with costs; and said lien on the land or improvements shall be superior to any mortgage or incumbrance created subsequent to the beginning of the labor of furnishing of the materials; and said lien if asserted as hereinafter provided shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials: provided, that such lien shall not take precedence of a mortgage or other contract lien or bona fide conveyance for value without notice, duly recorded or lodged for record according to law, unless the person claiming such prior lien shall before the recording of such mortgage or other contract lien or conveyance, have filed in the clerk's office of the county court of the county wherein he shall have performed labor or furnished material, or shall expect to perform labor or furnish materials as aforesaid, a statement showing that he has performed or furnished, or that he expects to perform or furnish, such labor or materials, and the amount in full thereof, and his lien shall not, as against the holder of said mortgage or other contract lien or conveyance, exceed the amount of the lien claimed, or expected to be claimed, as set forth in such statement. *** The liens provided for herein shall in no case be for a greater amount in the aggregate than the contract price of the original contractor; and should the aggregate amount of liens exceed the price agreed upon between the original contractor and the owner, then there shall be a pro rata distribution of the original contract price among said lien holders." This statute is radically different from our former laws on this subject, and has not heretofore been before this court for construction. The preceding statute, while giving liens to contractors, subcontractors, material men, and laborers, practically thereby provided a process of garnishment in the hands of the owner of any money he might owe the contractor. Its purpose was merely to substitute the subcontractor, material man, and laborer to the rights of the contractor, and was effectual only in the event the owner was indebted to the contractor. It was entirely safe for the owner, without notice of the claims of others, to pay his contractor when he pleased,--even in advance. The present statute was clearly meant to fasten, and does fasten, on the property of the owner a lien for the claim of the subcontractor, material man, and laborer, although the owner has no notice of such claims, and may owe the contractor nothing. When applied to the facts of this case, assuming that Hightower is a material man, and Clark a subcontractor, within the meaning of the statute, the law gives to Hightower a lien on the lot and improvement of Walling & Co., without regard to the state of account between the owners and the contractors or the contractors and Clark. This is, in effect, argue counsel, the taking of Walling & Co.'s property to pay the debt of another, and gives them no day in court, and is, moreover, an unwarrantable interference with the right of Walling & Co. to make such contract as they pleased with Bailey & Koerner, and discharge their obligations when and as they pleased. This contention is not without authority to support it. The Ohio courts seem to so hold, and perhaps, also, the courts of Michigan. But the weight of authority seems the other way. In Laird v. Moonan, 32 Minn. 358, 20 N.W. 354, the constitutionality of an act from which our act seemingly is copied is elaborately discussed, and the act upheld. In Wisconsin the same conclusion was reached. Mallory v. Abattoir Co., 80 Wis. 170, 49 N.W. 1071. So, in Massachusetts, in Donahy v. Clapp, 12 Cush. 440; Bowen v. Phinney, 162 Mass. 593, 39 N.E. 283. In Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045, the court said: "It is true that a lien is provided for persons with whom the owner is supposed to have no direct contractual relations, but the fact alone does not invalidate the act; for the owner must be held to a knowledge of the existing law on the subject, and to the presumption that he employed the original contractor and gave out his work with reference to that law. The right of lien to subcontractors and material men is, by operation of law, incorporated into and made a part of the owner's contract, as much as if expressly included and written therein. He contracts about a subject in which the law declares certain advantages to all persons concerned,...