In Re: Rehearing

• Decision Date: 29 May 1926
• Citation: 42 Idaho 399
• Parties: On Petition For Rehearing.
• Court: Idaho Supreme Court

42 Idaho 399

On Petition For Rehearing.

Supreme Court of Idaho

May 29, 1926

TAYLOR J.

-A petition for rehearing has been filed herein by appellant Brownell Brothers Company, Ltd. Counsel for petitioner say:

"1. The Court erred in holding that a corporation cannot claim a labor lien and that Brownell Brothers Company, Ltd., being a corporation, could not claim to have rendered labor in any capacity, except as a subcontractor.

"2. The Court erred in holding and announcing as a general rule of law in the State of Idaho that corporations cannot supply or furnish labor in the erection or repair of buildings except as subcontractors, and that a corporation

in the furnishing of labor cannot have a lien of equal rank with that of individual laborers under Section 7351, but must subordinate its labor claims to individual laborers and materialmen.

"3. The statement of the law as to the lien rights of corporations is too general and misleading and should be modified and corrected before the decision becomes final....

"Clearly a plumbing company, although incorporated, may send its plumbers to repair the plumbing of a residence or building and have the same right to a lien for the labor furnished as a partnership or individual plumber who also sends hired employees to do such work

"Had the labor items been entirely segregated from the cost of the material, Brownell Brothers would have been entitled to have had their labor included in the first rank under Section 7351"

The lower court allowed petitioner's claim of lien for what appeared to be in part labor and part materials, but classed the lien as that of a subcontractor rather than as of a materialman. Petitioner at no time contended for equal rank with laborers, but that its lien was that of a materialman, and complained of the classification as of a subcontractor instead. The question in this case is one as to the priority of the claim of the corporation. The argument made in the opinion was in distinguishing the petitioner from a materialman. The result could not have been otherwise, even had the contention been made.

Authority need not be sought or cited from other than the lien law itself that "the word 'person' includes a corporation as well as a natural person." (Sess. Laws 1899, p. 147, c. 5, sec. 1, p. 155.) (This, as well as section 2 of that act, is omitted by the compiler of the Compiled Statutes. See C. S., secs. 9444 and 9456.)

Let us then consider the act with "corporation" and "person" synonymous. It does not give to a corporation a "labor lien" as such, for it does not to a natural person under the same circumstances. Of course, a laborer is in a sense dependent upon a contract relation, but a person

not "performing labor" does not have a "labor lien," though he may furnish labor and have a lien therefor. In such event, he is dependent for his lien upon labor furnished under his contract relation rather than "performing." Such lien is given him, by the interpretation of other portions of the act, as a contractor and not a laborer.

"The contractor is entitled to his lien, not only for his own labor, but for the labor of those under him, and even though his workmen have taken out liens the effect is only to diminish the contractor's lien pro tanto.

"The contractor has also a lien for necessary materials furnished by him to comply with his contract." (27 Cyc. 84.)

Any lien filed by the employer of labor performed is such employer's lien, and must rest upon some contract relation, whether it be that alone of furnishing the labor, contracting for the completion of the whole or part of the work, or in some instances as incidental to the furnishing or installation of materials by a materialman, in which first-mentioned relations, the lien is enforced as that of a contractor or subcontractor, and in the latter as of a materialman and not as a "labor lien."

C. S., sec. 7339, provides that "every person performing labor upon, or furnishing materials to be used," has a lien for the work or labor done or materials furnished.

"The decisions of the courts are not harmonious, and slight differences in the wording of the statutes render many of them inapplicable. We are of the opinion...