Johnson v. Mcclure

• Decision Date: 23 August 1900
• Citation: 62 P. 983,10 N.M. 506
• Parties: JOHNSONv.McCLURE et al.
• Court: New Mexico Supreme Court

10 N.M. 506

62 P. 983

JOHNSON

v.McCLURE et al.

Supreme Court of the Territory of New Mexico.

Aug. 23, 1900.

Syllabus by the Court.

1. An architect who prepares plans and specifications for a building, and superintends the construction of such building in accordance therewith, has a lien for his services, both in preparing said plans and specifications and in superintending such construction.

2. Boyle v. Mining Co., 50 Pac. 347, 9 N. M. 237, distinguished.

Appeal from district court, Bernalillo county; before Justice J.W. Crumpacker.

Action by Harry D. Johnson against Frank P. McClure and others. Judgment for defendants dismissing the complaint, and plaintiff appeals. Reversed.

An architect who prepares plans and specifications for a building and superintends the construction of such building in accordance therewith, has a lien for his services both in preparing said plans and specifications and in superintending such construction.

Summers Burkhart, for appellant.

Alonzo B. McMillen, for appellees.

PARKER, J.

This was a suit brought to foreclose a mechanic's lien by appellant upon a building known as the “New Opera House,” in the city of Albuquerque. All of defendants appeared, two did not plead, two answered, and two demurred, which demurrers were sustained, and the bill dismissed. One of the demurrers was general, and to the point that the complaint failed to state facts sufficient to constitute a cause of action. The other demurrer was special, and raised the same point, and the point that a claim by an architect for services in drawing plans and specifications, for which, it is alleged, there is no right to a lien, is joined with a claim for superintendence of the construction of the building, and that thereby the whole lien is rendered void. The fourth paragraph of the claim of lien is as follows: “That the labor performed upon said building by this complainant was done under a contract with said Frank P. McClure, entered into about the 14th day of November, 1898, by which said Frank P. McClure employed this claimant as architect of said building and superintendent of the construction thereof; that no price was agreed upon by them as the compensation of said claimant; that this claimant acted as architect of said building, preparing the plans and drawings and specifications therefor, and acted as superintendent of the construction thereof, and in all things complied with his said contract; that said building and his said contract were completed on August 1, 1899; that claimant's services were reasonably worth the sum of fifteen hundred dollars.” It thus appears that appellant claims a lien for services as architect in preparing plans, drawings, and specifications, and for services as superintendent of the construction of the building, for all which services he makes the lump charge of $1,500. Appellees contend that there is no lien, under our statute, for the superintendence of the construction of a building by an architect in pursuance of plans and specifications furnished by him, and, even if such a lien is within the terms of the statute, there is no lien for his services in preparing the plans and specifications. This exact proposition has never been presented to this court before. We have made a thorough examination of the authorities, and are convinced that the great weight of authority, as well as the better reasoning, is in favor of the right of the superintending architect to have his lien, under statutes like ours providing for liens for “every person performing labor,” not only for his services in superintending the work, but also for his plans and specifications in accordance with which the building is erected. Phillips, Mech. Liens, § 158; Boisot, Mech. Liens, § 116; Kneel, Mech. Liens, § 13a; Stryker v. Cassidy, 76 N. Y. 50; Insurance Co. v. Rowand, 26 N. J. Eq. 389; Bank v. Gries, 35 Pa. St. 423; Knight v. Norris, 13 Minn. 473 (Gil. 438); Hughes v. Torgerson (Ala.) 11 South. 209, 16 L. R. A. 600; Taylor v. Gilsdorff, 74 Ill. 354; Phoænix Furniture Co. v. Put-in-Bay Hotel Co. (C. C.) 66 Fed. 683; Gardner v. Leck (Minn.) 54 N. W. 746; Van Dorn v. Mengedoht (Neb.) 59 N. W. 800; Parsons v. Brown (Iowa) 66 N. W. 880; Rinn v. Power Co. (Sup.) 38 N. Y. Supp. 345; Mining Co. v. Bouscher (Colo. Sup.) 12 Pac. 433; Mulligan v. Mulligan, 18 La. Ann. 20; Arnoldi v. Gouin, 22 Grant, Ch. 314. We are cited to numerous authorities by appellees, but, with the exception of a few which will be noticed hereafter, they all go to the proposition only that an architect who furnishes plans and specifications, but who does not superintend the construction of the building in accordance therewith, is not entitled to a lien. Appellees cite Raeder v. Bensberg, 6 Mo. App. 445; Foushee v. Grigsby, 12 Bush, 75; Thompson v. Baxter, 92 Tenn. 305, 21 S. W. 668, decided by a divided court; Mitchell v....