Houston-Hart Lumber Co. v. Neal

• Decision Date: 04 February 1911
• Citation: 113 P. 621,16 N.M. 197
• Parties: HOUSTON-HART LUMBER CO.v.NEAL et al.
• Court: New Mexico Supreme Court

16 N.M. 197

113 P. 621

HOUSTON-HART LUMBER CO.

v.NEAL et al.

Supreme Court of the Territory of New Mexico.

Feb. 4, 1911.

Syllabus by the Court.

When a person is employed by the owner of a lot in an incorporated city to construct a sidewalk in front of the same, and he purchases materials to be used, and which were used, in the construction of such sidewalk, the purchase of such materials will be considered as having been made at the “request” of the owner, within the meaning of section 2218 of the Compiled Laws of 1897, so as to entitle the materialman to a lien therefor under the mechanic's lien laws.

Appeal from District Court, Curry County; before Justice William H. Pope.

Action by the Houston-Hart Lumber Company against Harry Neal and F. C. Herbert. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Where a person is employed by the owner of a lot in a city to construct a sidewalk, and purchased materials which were used in its construction, the purchase will be considered as made at the request of the owner, within Comp.Laws 1897, § 2218, so as to entitle the materialman to a lien thereon.

Williams & Ryan, for appellant. Harry L. Patton, for appellees.

WRIGHT, J.

This was an action in the trial court, wherein the plaintiff, the Houston-Hart Lumber Company, was claiming a mechanic's lien for material furnished and delivered to the contractor, who used such materials in the construction of a sidewalk built along, in front of, and adjacent to certain town lots in the city of Clovis, owned by the defendants, Harry Neal and F. C. Herbert; the plaintiff's claim to the lien being based on section 2218 of the Compiled Laws of 1897, on mechanics' liens, which reads as follows, to wit:

“Sec. 2218. Any person who, at the request of the owner of any lot in any incorporated city or town, grades, fills in, or otherwise improves the same, or the streets in front of, or adjoining the same, has a lien upon such lot for his work done and materials furnished.”

There is no controvery as to the facts in this case, and the only question involved is: “Does the purchase and use of material by the contractor in the construction of a sidewalk along and in front of town lots amount to the request of the owner for the purchasing of such materials, so as to bring the case within the provisions of said section 2218?”

Section 2217, being the section of the mechanic's lien law just preceding the section involved herein, after providing that every person performing labor upon or furnishing materials to be used in the construction, alteration, or repair of certain structures has a lien upon the same for the work or repair done or materials furnished, whether done or furnished at the instance of the owner of the building or other improvement, or his agent, provides that: “Every contractor, subcontractor, architect, builder or other person having charge of any mining or 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 purpose of this act.”

It appears from the record in this case that the Houston-Hart Lumber Company sold and delivered to one Adams 75 sacks of cement, which cement was to be used in the construction of a...