Jensen v. Brown

• Decision Date: 01 February 1875
• Parties: JENSEN et al. v. BROWN.
• Court: Colorado Supreme Court

2 Colo. 694

JENSEN et al. v. BROWN.

Supreme Court of Colorado

February, 1875

Error to Probate Court, Arapahoe County.

THE petitioners (plaintiffs in error) alleged that they sold certain nails, locks, and other materials, to one Joseph Wood, to be used, and which were used in the erection and construction of a building in the city of Denver, which was owned by the defendant; that Wood contracted with defendant to erect said building, and that the defendant knew that the materials were so used. Other facts necessary to establish a lien, as that notice was served upon the defendant as required by the statute, the amount due, and the like, were alleged in the petition, but it was not alleged that any sum of money was due, or to grow due from the defendant to the said Wood, at the date of notice, or at any time.

The defendant answered, and evidence was taken before a referee who reported that there was due to complainants, for principal and interest, $122.56. Upon the hearing in the probate court, the petition was dismissed, and the petitioners sued out this writ of error. The sufficiency of the notice to defendant was discussed in argument, but as it is not noticed in the opinion, the evidence on that point is omitted.

Mr. W S. DECKER, for plaintiffs in error.

Messrs SAYRE, WRIGHT and BUTLER, for defendant in error.

BRAZEE J.

The question presented by this case is whether a material-man, under the statute of Colorado, approved February 9th, A. D. 1872, furnishing material to a contractor, has a lien upon the building in respect to which the contract is made, and material furnished.

The first section of said act prescribes that 'all artisans, mechanics, and others, who shall perform work or labor, or furnish materials to the amount of $25, or more, for the construction or repairing of any building, or other superstructure, shall have and may claim and hold a lien upon such building or superstructure for the amount and value of the work and labor so performed, or materials furnished by each, respectively.'

The proviso to the second section of the act enacts: 'That when such lien is claimed by a sub-contractor, journeyman, or any other person than a contractor performing work or labor, or furnishing materials, the statement shall be filed within twenty days after the time when the last work or labor was performed, or the last materials furnished,' etc.

The third section gives to those who shall perform work or labor or furnish materials to the construction or repair of any railroad, tramway, to all road, canal, water ditch, flume, aqueduct or reservior, a lien.

The fourth section gives to miners, laborers and others a lien upon the mine, lode or other deposit for the value of the work performed thereon, or materials furnished there for.

The fifth section gives to laborers who shall perform work or labor upon building lots in cities or towns in improving the same, a lien.

The sixth section of the act expressly gives to every sub-contractor, journeyman or laborer performing work or furnishing materials, a lien upon a superstructure or other property; and if money be due, or is to become due under the contract from the owner, upon the service of notice of claim of lien the owner may withhold a sufficient amount to satisfy the lien claimed, until the validity of the claim be established, and if established, the amount is made a valid set-off pro tanto in favor of the owner against the contractor. And after notice to the owner of the claim, etc in case he fails to comply with...