The opinion of the court was delivered by
Me. Justice McIvee.
The defendants, Bowden and others, who are styled, in the title of the case, “ owners,” entered into a written contract with their co-defendants, Maxwell, Lyman & Land, styled “ contractors,” for the construction of a building on nine adjoining lots in the city of Spartanburg; the first floor of which was to be divided into nine stores, and an entrance to the hotel, which embraced the second and third floors of the building. The stores are the separate property of the several owners of the lots, while the hotel and the entrance thereto belong to them jointly. The defendants, Maxwell, Lyman & Land, sub-let the contract for the brick and rock work to two of their number, Maxwell & Lyman, and they, in turn, made a sub-contract with the appellant for the rock work. Under the contract between the owners and Maxwell, Lyman & Land, the latter were to furnish all the material necessary and proper for completing the building and erect and finish the same, in consideration whereof the owner’s agreed to pay them the sum of $22,500, in six installments, as the work progressed. All these installments had been paid before these proceedings were commenced, except the last, which was not then payable, as the building had not then been fully completed.
The appellant having completed his contract with Maxwell & Lyman, for the rock work, commenced these proceedings to enforce a lien upon the building and the lots upon which it is situated, under the provisions of chapter CXX., Gen. 8tat., 1872, p. 550. The fundamental question raised by the appeal is, whether the appellant, who is a sub-contractor of a sub-contractor, is entitled to the lien which he is here seeking to enforce, and as we are of opinion that he is not, the other questions suggested cannot arise and need not be considered.
It is difficult to understand how a lien can be created, unless there is some debt to be secured by it, and to create a debt there must be some contract, either express or implied, between the parties. The appellant here is seeking to set up a lien upon the property of persons with whom he has made no contract, either express or implied, but, on the contrary, his claim grows out of a contract made with a third party. He claims, however, that [6]*6he is entitled to this lien under the provisions of the statute above referred to. So that the practical question is, whether, under a proper construction of that statute, the appellant, who is a sub-contractor of a sub-contractor, can claim the benefit of its provisions.
Section 7, of chapter CXX., of the Gen. StaL, above referred to, creates the lien claimed, and is in the following words: “Any person to whom a debt is due for labor performed or furnished, or for materials furnished and actually used in the erection, alteration or repair, of any building or structure upon any real estate, by virtue of an agreement with, or by consent of, the owner of such building or structure, or any person having authority from,’ or rightfully acting for, such owners, in procuring or furnishing such labor or materials, shall have a lien upon such building or structure, and upon the interest of the owner thereof in the lot of land upon which, the same is situated, to secure the payment of the debt so due to him, and the costs which may arise in enforcing such lien under this chapter, except as is provided in the following sections.”
To entitle a person, therefore, to the lien provided for in this statute, two things must concur. 1st. There must be a debt due to the person claiming the lien “ for labor performed ” or furnished, or for materials furnished and actually used in the construction of the building upon which the lien is claimed. 2d. Such labor must be performed or materials furnished “by virtue of an agreement with, or by consent of, the owner of such building or structure, or any person having authority from, or rightfully acting for, such owner in procuring or furnishing such labor or materials.” In this case there seems to be no doubt that there is a debt due to the appellant for labor performed and materials furnished and actually used in the construction of the building, and the only question is whether such labor was performed and materials furnished “ by virtue of an agreement with, or by consent of,” the owners, or by virtue of an agreement with, or by consent of, “any person having authority from, or rightfully acting for, such owners.” It is not pretended that there was any express agreement between the owners and the appellant, but, on the contrary, the agreement under which the labor and [7]*7materials were furnished by the appellant was made with a third party, Maxwell & Lyman.
It is, however, contended that the labor and materials were furnished by appellant with the “ consent of ” the owners, and it is necessary, therefore, to determine the meaning of the term “ consent ” as used in this statute. The word “ consent ” ordinarily implies choice, and one can scarcely be regarded as giving his consent to that which he has no right to object to. In the ■experience of life a man is oftentimes compelled to accept results, in the sense that he makes no opposition or objection thereto, for the reason that he has no right or power so to do, but he cannot, in any proper sense of the term, be regarded as consenting to them unless he has the right and the power to exercise a choice, to consent or object thereto. As is well said by Mr. Chief Justice Simpson, in Gray v. Walker, 16 S. C. 147, in construing this statute: “ Consent here, we think, implies something more than a mere acquiescence in a state of things already in existence. It implies an agreement to that which, but for the consent, could not exist, and which the party consenting has a right to forbid.” Now in this case the owners of the property, having made a contract with Maxwell, Lyman & Land to construct the building and furnish all the materials necessary and proper for the purpose, had parted with all power or right of control, and any interference on their part with those who were employed by the contractors would have been, as the Circuit judge says, impertinent. They cannot, therefore, in any proper sense of the term, be said to have given their “ consent ” to that which they had no right to forbid:
Nor can it be said with any propriety that Maxwell & Lyman, in making the contract with the appellant for the rock work, had any authority from, or were rightfully acting for, the owners. The object which the owners had in view, in letting the entire contract to Maxwell, Lyman & Land, unquestionably was to relieve themselves from the trouble and responsibility of making contracts with the laborers, mechanics and material-men for the labor and material necessary to be employed in the construction of the building; and if Maxwell & Lyman, or even Maxwell, Lyman & Land, could be regarded as their agents, in [8]*8making all the contracts for such labor and materials, this object would not only be entirely defeated, but they would be placed in a much worse position than if they had made no contract at all.
It is true that some of the terms used in sections 8 and 10 of the statute do seem to point to a construction different from that which we have adopted ; but, as the Circuit judge very properly remarks, these sections are not designed to create
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The opinion of the court was delivered by
Me. Justice McIvee.
The defendants, Bowden and others, who are styled, in the title of the case, “ owners,” entered into a written contract with their co-defendants, Maxwell, Lyman & Land, styled “ contractors,” for the construction of a building on nine adjoining lots in the city of Spartanburg; the first floor of which was to be divided into nine stores, and an entrance to the hotel, which embraced the second and third floors of the building. The stores are the separate property of the several owners of the lots, while the hotel and the entrance thereto belong to them jointly. The defendants, Maxwell, Lyman & Land, sub-let the contract for the brick and rock work to two of their number, Maxwell & Lyman, and they, in turn, made a sub-contract with the appellant for the rock work. Under the contract between the owners and Maxwell, Lyman & Land, the latter were to furnish all the material necessary and proper for completing the building and erect and finish the same, in consideration whereof the owner’s agreed to pay them the sum of $22,500, in six installments, as the work progressed. All these installments had been paid before these proceedings were commenced, except the last, which was not then payable, as the building had not then been fully completed.
The appellant having completed his contract with Maxwell & Lyman, for the rock work, commenced these proceedings to enforce a lien upon the building and the lots upon which it is situated, under the provisions of chapter CXX., Gen. 8tat., 1872, p. 550. The fundamental question raised by the appeal is, whether the appellant, who is a sub-contractor of a sub-contractor, is entitled to the lien which he is here seeking to enforce, and as we are of opinion that he is not, the other questions suggested cannot arise and need not be considered.
It is difficult to understand how a lien can be created, unless there is some debt to be secured by it, and to create a debt there must be some contract, either express or implied, between the parties. The appellant here is seeking to set up a lien upon the property of persons with whom he has made no contract, either express or implied, but, on the contrary, his claim grows out of a contract made with a third party. He claims, however, that [6]*6he is entitled to this lien under the provisions of the statute above referred to. So that the practical question is, whether, under a proper construction of that statute, the appellant, who is a sub-contractor of a sub-contractor, can claim the benefit of its provisions.
Section 7, of chapter CXX., of the Gen. StaL, above referred to, creates the lien claimed, and is in the following words: “Any person to whom a debt is due for labor performed or furnished, or for materials furnished and actually used in the erection, alteration or repair, of any building or structure upon any real estate, by virtue of an agreement with, or by consent of, the owner of such building or structure, or any person having authority from,’ or rightfully acting for, such owners, in procuring or furnishing such labor or materials, shall have a lien upon such building or structure, and upon the interest of the owner thereof in the lot of land upon which, the same is situated, to secure the payment of the debt so due to him, and the costs which may arise in enforcing such lien under this chapter, except as is provided in the following sections.”
To entitle a person, therefore, to the lien provided for in this statute, two things must concur. 1st. There must be a debt due to the person claiming the lien “ for labor performed ” or furnished, or for materials furnished and actually used in the construction of the building upon which the lien is claimed. 2d. Such labor must be performed or materials furnished “by virtue of an agreement with, or by consent of, the owner of such building or structure, or any person having authority from, or rightfully acting for, such owner in procuring or furnishing such labor or materials.” In this case there seems to be no doubt that there is a debt due to the appellant for labor performed and materials furnished and actually used in the construction of the building, and the only question is whether such labor was performed and materials furnished “ by virtue of an agreement with, or by consent of,” the owners, or by virtue of an agreement with, or by consent of, “any person having authority from, or rightfully acting for, such owners.” It is not pretended that there was any express agreement between the owners and the appellant, but, on the contrary, the agreement under which the labor and [7]*7materials were furnished by the appellant was made with a third party, Maxwell & Lyman.
It is, however, contended that the labor and materials were furnished by appellant with the “ consent of ” the owners, and it is necessary, therefore, to determine the meaning of the term “ consent ” as used in this statute. The word “ consent ” ordinarily implies choice, and one can scarcely be regarded as giving his consent to that which he has no right to object to. In the ■experience of life a man is oftentimes compelled to accept results, in the sense that he makes no opposition or objection thereto, for the reason that he has no right or power so to do, but he cannot, in any proper sense of the term, be regarded as consenting to them unless he has the right and the power to exercise a choice, to consent or object thereto. As is well said by Mr. Chief Justice Simpson, in Gray v. Walker, 16 S. C. 147, in construing this statute: “ Consent here, we think, implies something more than a mere acquiescence in a state of things already in existence. It implies an agreement to that which, but for the consent, could not exist, and which the party consenting has a right to forbid.” Now in this case the owners of the property, having made a contract with Maxwell, Lyman & Land to construct the building and furnish all the materials necessary and proper for the purpose, had parted with all power or right of control, and any interference on their part with those who were employed by the contractors would have been, as the Circuit judge says, impertinent. They cannot, therefore, in any proper sense of the term, be said to have given their “ consent ” to that which they had no right to forbid:
Nor can it be said with any propriety that Maxwell & Lyman, in making the contract with the appellant for the rock work, had any authority from, or were rightfully acting for, the owners. The object which the owners had in view, in letting the entire contract to Maxwell, Lyman & Land, unquestionably was to relieve themselves from the trouble and responsibility of making contracts with the laborers, mechanics and material-men for the labor and material necessary to be employed in the construction of the building; and if Maxwell & Lyman, or even Maxwell, Lyman & Land, could be regarded as their agents, in [8]*8making all the contracts for such labor and materials, this object would not only be entirely defeated, but they would be placed in a much worse position than if they had made no contract at all.
It is true that some of the terms used in sections 8 and 10 of the statute do seem to point to a construction different from that which we have adopted ; but, as the Circuit judge very properly remarks, these sections are not designed to create any right, but simply to control and limit, or provide for the enforcement of the right created by section 7. The terms used in these subsequent sections must, therefore, be so construed as to conform to the proper construction of the language used in section 7, where-the right is created.
The authorities elsewhere do not seem to be in full accord upon the question which we have been considering, and we deem it unnecessary to enter upon a consideration of them, as the construction which we have adopted has received the sanction of this court in two cases, Murray v. Earle, 13 S. C. 89, where the matter was incidentally mentioned, and Gray v. WalJcer, supra,. where the point was distinctly decided.
There is also another view which supports our construction, derived from the internal evidence furnished by the statute. In-section 47 of the same chapter of the Gen. Stat., p. 555, providing for a lien on ships and vessels, sub-contractors are specifically mentioned, while in the section which we are called upon to construe, they are not mentioned at all. This affords a strong indication that while the legislature intended that class of persons to be protected by the lien provided for in the one case, they had no such intention in the other case.
Finally, the appellant contends that even if this court shall agree with the Circuit judge that the lien which he claims cannot be sustained, yet, under the liberal provisions of the code, his case should be retained and judgment rendered against those who contracted with him for the balance due on such contract, and that he be subrogated to such rights as they may be able-to establish against the owner's. This view of the case was not presented in the Circuit Court, and, therefore, this court, which exercises appellate jurisdiction only in eases of this kind, cannot undertake to consider the case in this aspect, and is not [9]*9to be understood as intimating any opinion as to the merits of appellant’s claim when it is thus presented. But, under the liberal provisions of the code, we see no reason why the appellant should not be permitted to litigate his claim in the new form suggested, and, for this purpose, the case will be remanded to the Circuit Court with leave to the appellant to amend his-proceedings in such way as he may be advised is necessary to present his claim in the form suggested, with leave, also, to the defendants to answer or demur to such, amended proceedings,, and to litigate the claim in its new form, as they may be advised.
The judgment of this court is that the judgment of the Circuit Court, in so far as it adjudges that the appellant has no lien upon the building mentioned, and the lots upon which it is situated, be affirmed; but in so far as it adjudges that the petition be dismissed, that it be reversed. It is further adjudged that the appellant pay all the costs which have accrued up to this time, including the costs of this appeal; that the costs which may hereafter accrue shall be provided for in the judgment hereafter to be rendered, and that the case be remanded to the Circuit Court for such further proceedings as may be necessary to carry out the views herein announced.