Smith v. Newbaur

• Decision Date: 19 November 1895
• Citation: 144 Ind. 95,42 N.E. 40
• Parties: SMITH et al. v. NEWBAUR et al.
• Court: Indiana Supreme Court

144 Ind. 95

42 N.E. 40

SMITH et al.

v.NEWBAUR et al.²

Supreme Court of Indiana.

Nov. 19, 1895.

Appeal from circuit court, Blackford county; E. C. Vaughan, Judge.

Action by John A. Newbaur and others against Henry B. Smith and others to foreclose a mechanic's lien. From a judgment for plaintiffs, defendants appeal. Affirmed.

Carroll & Dean, for appellants. Cantwell, Cantwell & Simmons, for appellees.

HOWARD, C. J.

This was an action for the foreclosure of a mechanic's lien, brought by appellees against appellants. There was a trial by the court, and a finding and decree in favor of the appellees. The errors assigned and argued on this appeal call in question the correctness of the court's action in overruling the demurrer to the complaint, in overruling the motion to strike out parts of the complaint, and in overruling the motion for a new trial.

The complaint shows that appellants entered into a contract with a firm named Challenger & Carey for the erection of a dwelling house on premises owned by appellants, the contractors to furnish all materials for the building; and that the contractors sublet a part of the work to another firm, named Sanders Bros., who were to furnish all materials in the part constructed by them. The appellees furnished the materials used by both contractors and subcontractors. A bill of particulars, showing the materials furnished, and also the dates of the several items, is made a part of the complaint, as is also a copy of the notice to hold a lien, filed in the recorder's office. The action was brought under the provisions of the mechanic's lien law of 1883 (Acts 1883, p. 140), as amended by the act of 1889 (Acts 1889, p. 257), and by the act of 1891 (Acts 1891, p. 28), section 7255, Rev. St. 1894 (section 1688, Elliott's Supp.), and following sections.

In support of the demurrer to the complaint it is first contended that the mechanic's lien law of this state is invalid, as repugnant to section 1, art. 14, of the constitution of the United States, which provides that no state shall deprive any person of life, liberty, or property without due process of law. This contention is based upon the provisions of section 3 of the mechanic's lien law (section 7257, Rev. St. 1894; section 1690, Elliott's Supp.), which provides that any person wishing to acquire such a lien upon any property shall file in the recorder's office, “at any time within sixty days after performing such labor or furnishing such materials,” notice of his intention to hold such lien. This notice,-the only one provided for in the statute,-is insufficient, say counsel, to secure that due process of law referred to by the federal constitution before the fixing of a lien upon the citizen's property. Under the law as enacted, counsel contend, any one may perform labor or furnish material in the construction of a building for a landowner, without such owner's knowledge or consent, and then secure a lien upon the land and building by notice filed after the work is done or materials furnished. It is said that the property owner should have notice at or before the doing of the work or the supplying of the materials, so that he may, if he wishes, prevent the doing of such work or the furnishing of such materials, and so keep his property free of the lien. It has often been held that every statute under which a contract is made enters into and forms a part of such contract. The appellants, in the contract for the erection of the dwelling house upon their property, are therefore chargeable with knowledge of, and are bound by all of the provisions of, our mechanic's lien law then in force. By the terms of the agreement entered into, the contractors were to furnish all materials necessary for the construction of the building. This was notice that such materials were to be furnished; and the law under which the contract was made was further notice that the building and ground upon which it was to be erected would be liable to a lien for the value of the materials so furnished. The only uncertainty left was whether those who should furnish the materials would claim the lien therefor. That uncertainty is provided for in the statute, which requires that the notice of intention to hold the lien be filed in the recorder's office within 60 days. The owner has, consequently, ample means of protection, and is not liable to a lien without notice, nor to have his property taken without due process of law.

It is intimated that the law hampers the freedom of action of the property owner; that he may desire to pay the contractor in advance, or to pay him by an exchange of other property for the erection of the building; and that it may be an inconvenience, or induce the contractor to bid higher for the work, if payment is to be delayed for 60 days after the work is done. These, however, are considerations that should be addressed to the legislature, and not to the courts. Besides, it is to be remembered that without the right to a lien on the property laborers and material men would in many cases have no security for their toil or the materials furnished by them. The laborer is worthy of his hire, and the seller of goods ought to be paid for them. As the law stands, all parties are secured in their rights. The owner, by seeing that laborers and material men are paid, or by keeping back for 60 days from the contractor sufficient to make such payment, is in no danger of having to pay twice for his building; while at the same time the man whose labor or material has gone into the building can look to the...