Smith v. Newbaur

• Decision Date: 21 February 1896
• Docket Number: 17,618
• Citation: 42 N.E. 1094,144 Ind. 95
• Parties: Smith et al. v. Newbaur et al
• Court: Indiana Supreme Court

42 N.E. 1094

144 Ind. 95

Smith et al. v. Newbaur et al

No. 17,618

Supreme Court of Indiana

February 21, 1896

Original Opinion of November 19, 1895, Reported at: 144 Ind 95.

OPINION

Howard, J.

We were of opinion that the validity of the mechanic's lien law of this State was fully considered and affirmed in the original opinion. That law does not provide for depriving an owner of his property without his consent. On the contrary the law, which enters into and forms a part of his building contract, is notice to him that his land and the building to be erected thereon are liable to a lien for the value of the labor and materials which may enter into its construction. He voluntarily contracts for this labor and material, with notice from the statute of the inchoate lien thereby authorized. The statute, moreover, in the interest of the owner, prevents the fixing of the lien unless notice be given him within sixty days from the time of the furnishing of the labor or material. His property is therefore not taken without due process of law. See Colter v Frese, 45 Ind. 96.

So it is said in Phillips Mechanics' Liens, 3d ed. section 33a, "A statute giving a sub-contractor a direct lien is not unconstitutional as forfeiting the owner's property to persons with whom he never contracted. The owner contracts with reference to the law which gives the lien for work and labor furnished to his contractor by journeymen and others."

It is further said by the authority cited, and in the same section, "that a provision in a mechanics' lien law which allows a laborer, mechanic or workman, thirty days after the building is completed or the contract of such laborer, mechanic or workman shall expire or be discharged, in which to give the owner written notice that a lien is claimed for such labor and material as have been furnished the contractor, does not render the act unconstitutional. The owner may, by contract or indemnity bond, protect himself against double payment for such labor and material." The same author, also in said section, observes: "In Wisconsin it is held that a law giving sub-contractors a lien without regard to the contract price or sum due the contractor is valid. The property has been enhanced in value by the labor and materials." Mallory v. LaCrosse Abattoir Co., 80 Wis. 170, 49 N.W. 1071.

And, in answer to what is said by counsel for appellant on the authority of Spry Lumber Co. v. Sault Savings Bank Loan and Trust Co., 77 Mich. 199, 43 N.W. 778, we may add, also, from Phillips on Mechanics' Liens, same section: "The consent of the owner is the basis of a lien. His property can be taken only by his consent or default. A law which gives a mechanic's lien for labor or materials, regardless of the contract of the owner, so that his property may be taken to pay for service he never bargained for, nor consented to, is unconstitutional." And the Michigan statute to which counsel refer is instanced by the author as one subject to such infirmity, and hence void.

The statute in the case at bar, however, is one with reference to which appellants entered into their building contract, and according to which they consented to the lien that followed....