O'Neil v. Anderson

• Citation: 4 N.W. 47,26 Minn. 329
• Parties: WM. O'NEIL, APPELLANT, v C. P. ANDERSON AND ST. OLAF SCHOOL, RESPONDENTS. (first case) Charles I. BARDWELL and others, Respondents, v. Charles P. ANDERSON and St. Olaf School and others, Appellants. (second case)
• Decision Date: 03 January 1880
• Court: Supreme Court of Minnesota (US)

26 Minn. 329

4 N.W. 47

WM. O'NEIL, APPELLANT,vC. P. ANDERSON AND ST. OLAF SCHOOL, RESPONDENTS. (first case)

Charles I. BARDWELL and others, Respondents,

v.Charles P. ANDERSON and St. Olaf School and others, Appellants. (second case)

Supreme Court of Minnesota.

Filed January 3, 1880.

Appeal from order, district court, county of Rice. (first case)

Appeal from order of district court, county of Hennepin, overruling demurrer to plaintiff's complaint. (second case) Baxter & Quin, for appellant. (first case)

Gordon E. Cole, for respondent.

Koon & Merrell, for respondent. (second case)

Gordon E. Cole, for appellant.

GILFILLAN, C. J.

These actions are to enforce liens claimed by the respective plaintiffs against real estate of the corporation defendant.

In the first the complaint alleges said defendant's ownership of the land; that in May, 1877, it made a contract with the defendant Anderson, by which he agreed to construct, during the years 1877 and 1878, a building on the land; that afterwards plaintiff contracted with Anderson to do a part of the work on the building and furnish part of the materials therefor; that he accordingly did such work and furnished such materials between May 30, 1877, and September 24, 1878; that there is a balance due him from Anderson therefor, and that he has made and filed the account thereof as required by the act of 1878. There is also a similar claim alleged for work done and materials furnished by him under a contract with Anderson, made in April, 1878.

The complaint in the second action is for materials furnished Anderson for constructing a building on the land of the corporation between April 1, 1878 and November 10, 1878. This complaint does not aver the existence of any contract between the corporation defendant and Anderson for constructing the building, but avers that Anderson “was building and constructing a school building for said St. Ola School situate on,” etc. A demurrer to the first complaint was sustained and a demurrer to the second overruled.

Prior to the passage of chapter 3, Laws 1878, amending chapter 90, General Statutes, no one was entitled to a lien on building and land for work done or materials furnished for constructing, altering or repairing a building, unless he had a contract with the owner, or his agent, for doing or furnishing the same. The remedy for one doing work on or furnishing material for the building, for the builder or contractor, was against the amount that might be due the latter under his contract with the owner at the time notice should be served on the owner by the person doing such work or furnishing such material. Uunder chapter 90, before the amendment the remedy, both to the original contractor and those doing work or furnishing material for him, depended upon there being a contract with the owner. The change effected by the amendent of 1878 is in extending the right of lien to those who, before that time, had right of recourse only against the amount due from the owner to the builder or contractor.

The second section of the chapter, as amended, construed literally and by itself, might seem to indicate an intention to give a right of lien to any one doing work on or furnishing material for a building, whether the owner of the land consented to its erection or not, even if erected against his will; but as it would not be within the power of the legislature to do this, we must look beyond the mere language of that section to ascertain the intention. The giving of a lien in favor of others than the builder is in effect making the owner, to the extent of his interest in the building and land, surety that the builder will pay the debts contracted by him in erecting the building.

To enable the owner to avoid the inconvenience and risk that would accrue to him from this, section 3 provides: ...