Jacobs v. Knapp

50 N.H. 71

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1870
• Status: Published

Opinion

Foster, J.

The decision of the questions raised by this case depends upon the construction to be given to the 14th section of the 125th chapter of the General Statutes.

That statute provides that “ any person who labors at cutting, hauling, or drawing wood, bark, logs, or lumber, shall have a lien thereon for his personal services, which lien shall take precedence of all other claims except liens on account of public taxes, to continue sixty days after the services are performed, and may be secured by attachment.”

At the common law the lien of a mechanic, manufacturer, or other laborer “ is neither a jus ad rem nor a jus in re: that is to say, it is not a right of property in the thing itself, or a right of action to the thing itselfbut it is a security, derived from a “ general principle of the common law, which gives to a man who has the lawful possession of a thing and has expended his money or his labor upon it, at the request of the owner, a right to retain it until his demand is satisfied.” Story on Agency, §§ 352-3 Scarfe v. Morgan, 4 Mees, and Welsh. 283; Copley v. O’Neil, 1 Lansing 218. The lien of a workman at common law belongs strictly to the person contracting to do the work or service, and not to the sub-contractors, or persons employed under him. Story on Bailments, § 440; Hollingsworth v. Dow, 19 Pick 228. It is a qualified ownership in the nature of & pledge; and the security attaches only to the debt and obligation created by, and due from, the owner of the property upon which the labor is expended, — the person against whom the pledge is claimed, — unless the owner have, by some express act or by necessary implication, pledged or authorized another to pledge his property for the debt of another. In the present case, no such authority was given by the defendants to Fifield; and, by the sub-contract of Fifield with the plaintiff, the defendants did not become the debtors of the plaintiff, though the work was done oii the defendants’ property, unless the common law relationship and obligations of the parties are so entirely changed by the statute as to create the involuntary relationship of debtor and creditor, and raise by implication a promise contrary to the fact. Hollingsworth v. Dow, 19 Pick. 228; Case of an Hostler, Metcalf’s Yelv. 67, and notes; Phelps v. Sinclair, 2 N. H. 555; Hodgdon v. Waldron, 9 N. H. 68.

A lien grows out of a contract, express or implied; and without such contract there can be nothing to support the lien. Thus there can be no lien in favor of a party who has wrongfully obtained possession of the property.

“ The right of lien is also to be deemed waived, when the party enters into a special agreement inconsistent with the existence of the lien, or from which a waiver of it may fairly be inferred ; as when he gives credit, by extending the time of payment, or takes distinct and independent security for the payment. The party shows by such acts that he relies, in the one case,' upon the personal credit of his employer ; and, in the other, that he intends the security to be a substitution for tlie lien.” 2 Kent’s Com. *638.

And although it has been held that a lien is not discharged by taking the employer’s note for the amount due for the labor bestowed upon the work thus pledged, yet in a recent case in Illinois it was held that where one of the members of a firm owned a lot, and purchased lumber to improve the same, and the firm note was given in payment, that was such additional security as discharged the lien. Am. Law Register for June, 1870, p. 386.

A lien, as we have seen, is a personal right, as well as an interest which can only be created by the owner, or by his authority. If Fifield, by virtue of his contract with the defendants, had a lien upon the wood, the plaintiff could acquire no lien upon the property through him. The plaintiff, as a creditor‘of Fifield, could not attach and hold, as against the owner, at the common law, the property in which Pifield had but the qualified interest of a pledgee. Lovett v. Brown, 40 N. H. 511. Neither is a lien for the price of labor performed on an article assignable. Bradley v. Spofford, 23 N. H. 447. While the law is careful to promote, by the security of liens, good faith and fair dealing between the laborer and the owner of the property upon which the labor is expended, it deems it contrary to good policy to encumber and embarrass trade and manufactures by any relaxation of the principles applicable to the doctrine of liens, such as would encourage or permit conflicting claims to be interposed, or such as would render the respective rights and obligations of bailer and bailee uncertain and doubtful.

The statutes of liens have enlarged the privileges of the party who, at common law, could only as bailee avail himself of the lien, by substituting, in the enumerated cases, attachment of the property for retention of possession; but it would be quite anomalous to regard this process of attachment as applying in favor of a stranger against a party with whom the plaintiff never contracted, and who could in no proper sense be regarded as an attaching creditor.

But does the statute of 1866 so change the common law as to create the duties, rights, and obligations belonging to the ordinary relationship of debtor and creditor, in a case where there, is, but for the statute, no privity of contract ?

Such a change would in our opinion be so radical, inconvenient, and often, practically, so unjust, that a construction which would give the statute that effect could only be allowed in a case where the intention of the legislature, in that direction, would seem to be too apparent to be mistaken. But we are the rather inclined to suppose that, with too little regard for clearness of expression, the intention of the framers of the statute, upon which the plaintiff relies, was only to extend the provisions of previous statutes (the mechanics-lien law of 1861, Gen. Stat., ch. 125, §11) to another class of laborers.

The terms of the 14th section, “ any person who labors at cutting,” &c., under the common application of the maxim, “ quifaeit per alium facit pér se,” are logically and legally applicable to the general contractor, having servants or sub-laborers under him. This is but the natural construction of the language of the law, and, to hold otherwise and to give to the term “ personal services ” the prominence which would, in a case like the present, deprive the contractor and creditor of the lien (or at least involve him in a conflict regarding titles), and confer the privilege of such security upon a stranger to the owner and pledger of the property, without notice to the owner and opportunity for him to protect liis interests, might, and not unfrequently would, work manifest injustice.

The principles applicable to a contract like that under consideration would apply equally to one more complicated, and in many cases would be likely to work inextricable confusion by giving to various persons having no connection with each other and none witli the principal,— the owner- of the property, — unless by some implied condition of sub-agency, liens upon the whole property for labor expended upon different parts under different contracts, amalgamated into the completed work undertaken by the original contractor. The master-builder, for example, contracts with a brick-maker, who furnishes the bricks. He also contracts with the master-mason; but the latter employs the bricklayer, and perhaps the bricklayer employs the hod-carrier and the plasterer. The master-builder may employ a carpenter; but the latter may furnish and employ the various laborers who do the wood-work of the building. The master-builder may employ the painter; but the latter may have his own servants in his peculiar line of work, — and so on, to the extent of involving, in the same general work, a great variety of contracts and agencies. In such a case, to give not only the master-builder, but also all these various under-workmen, each an independent lien, without preference or precedence, upon the same property, would disástrously embarrass the useful construction of the work.

In short, there would seem to be no practicable rule by which to interpret this statute, other than one which should limit the subsistence of the lien to the party alone who specially contracts with the owner of the pi'operty upon which the labor of the contractor and all his sub-contractors is expended.

The general owner in many cases, undoubtedly, contemplates that the work will not be performed by the individual services of the party alone with whom he contracts, and,'by necessary implication, gives the contracting party authority to employ such sub-contractors and agents as the necessities of the occasion demand; and, to a certain extent, the relation thus created between the owner and the sub-contractors may be such as to impose upon the former, liabilities to the public for the negligence of the sub-contractors, and even, it may be, for debts incurred, with which the principal, the owner, in fact' had nothing to do; but, for the reasons suggested, we think it would be altogether unsafe to enlarge the application of the common law principles pertaining to the doctrine of liens to which we have adverted.

Therefore we are inclined to the opinion that no such important change was contemplated or should be held to have been wrought by the statute in question.

We find no analogy for such a construction, drawn from the phraseology of the existing statutes of other States. In several States the lien is given by statute to sub-contractors; but never, so far as we have seen, except in one instance (where it was found to be practically void, until a remedy was provided by subsequent legislation), without some special provision applicable to the peculiar condition of the case, calculated and intended to avoid the embarrassments and diifieulties which we have suggested. These provisions usually require, by way of proviso, that, if the work is done under contract with the owner, no person who may have done work or furnished materials for such contractor shall have the benefit of the lien, unless, within a prescribed time after his employment by the contractor, he shall give notice to the owner that he is so employed and will claim the benefit of the lien.

Such a law as we have indicated and have found in other jurisdictions would perhaps be of public advantage. It would tend to protect the laborer against the fraud, dishonesty, or insolvency of owners and contractors ; but, if evils exist by reason of the present state of the law, the legislature alone can, and that body most effectually may, provide the remedy. But it would seem that the legislature has not yet comprehended the evil, if it exists.

*

By the express provisions of sec. 9,'ch. 125, the lien of laborers on vessels is limited to the general contractor, and is not extended to subcontractors or under-workmen. The lien of laborers upon buildings is limited in the same manner by sec. 11 of the same chapter; and we see no reason why the 14th section should receive a construction’ extending to laborers at cutting, hauling, or drawing wood, bark, logs, or lumber, privileges and benefits greater than are accorded to those who furnish personal labor in aid of the construction of vessels or dwelling-houses. If the legislature had intended to change the law in respect to this peculiar class of- laborers, they would have done so by explicit terms, it would seem. The fact that they have not done so, and that no reason for such a distinction should, as we regard it, be made, is to our minds very strong evidence that such was not their intention. Their purpose rather seems to have been to extend the benefits of the lien, provided by previous statutes, to another equally meritorious but not more especially deserving class of laborers.

Upon the whole, therefore, we are inclined to the opinion that the lien of laborers in the class to which the plaintiff belongs can attach only in case and by virtue of a contract, express or implied, with the owner of the property upon which the labor is bestowed ; that if the personal services are rendered upon a different contract with a person other than the owner, or some one expressly authorized by him to bind the latter and create the lien, the laborer must look to his employer alone for such security as he may in all cases demand and require, before engaging in the work.

We have already alluded to the anomaly suggested by these proceedings, whereby the plaintiff, in order to secure a debt against Fifield, the party with whom alone he has contracted (unless by such implication, as we understand, the statute does not require nor warrant), seeks to attach the property of Knapp & Putnam. He brings his suit upon the common counts, with no claim founded upon any contract to support it; his declaration is not special, declaring upon a liability of the defendant to the plaintiff, created by implication of the common law or the provisions of the statute ; he gives the defendants no notice of the nature'of his claim, and no opportunity to make the defence, which the party contracting with the plaintiff may perhaps properly have; he does not command the officer to attach the specific property upon which the lien is claimed, but the general property of the defendants ; his writ and suit is not- a proceeding in rem, or in the nature of a libel; and, in short, it is a proceeding utterly at variance with all precedent, reason, or authority.

But, although the reasons which we have expressed are to our minds abundantly sufficient to warrant us in holding that this suit cannot be maintained, there is another view of the subject leading to the same result. This view is suggested by the adjudications of the courts in the State of Maine. A statute of that State, passed Aug. 10, 1848, is in terms almost identical with our statute of 1866. With regard to a laborer’s claim to enforce a lien for personal services under the Maine statute of 1848, it was said by Appleton, J., in Bicknell v. Trickey, 34 Me. 281, “ The rights given by this statute confer on the laborer special privileges, and he must strictly comply with its terms if he would claim the benefit of its provisions. -The owner of the lumber may have contracted for its hauling, and may have fully paid the individual with whom such contract was made, yet, by virtue of this statute, the laborers may interpose their claims and assert their liens, and he may thus be compelled to pay twice for the. same services.”

The manifest injustice of this possibility is avoided by the construe-. tion which we have given in this opinion to our statute of 1866.

But the court in Maine has undertaken, so far as practicable, to avoid the injustice alluded to in this way: “ The proceedings,” says Appleton, J., in Bicknell v. Trickey, “.under this statute are to be viewed in a double aspect. So far as the debtor is concerned, they are in personam, and, as against him, the plaintiff may insert any and all claims which by law can be joined ; ” that is, in the case then before the court, a claim for personal services upon the particular logs upon which the lien was sought to be enforced, and also a claim for services upon other logs. “ So far,” he continues, “ as regards the general owner of the property, and against whom the laborer has no legal claim, when the person with whom he has contracted is other than the owner of the lumber, the proceedings are strictly in rem. Without contract, without personal liability on the part of the general owner, the laborer claims to seize his property to satisfy the debt of another. His rights arid his position are diffei’ent from that of the debtor, with whom the contract to labor was made. Now this being a proceeding, so far as concerns the general owner, strictly in rem, the laborer’s rights under the statute depend upon the special claim thus protected, and upon continuing its identity, as well as that of the property upon which it is imposed. ■* * No other property is liable except that upon which the lien attaches. * * The identity of claim and of property must co-exist, and must be traceable till the fruits of the judgment have been obtained by a satisfaction of the execution.”

Therefore it was held, in various cases, that where the claim against the debtor was in assumpsit upon the common counts, and did not contain an allegation of the lien, and where the order was to attach the general property of the debtor or of the owner of the logs upon which the lien in some other form might attach, that the suit was in personam and not in rem, that the record must govern,.that the lien by such general proceedings was either waived or merged and drowned in the general claim and could not be sustained; Cunningham v. Buck, 34 Me. 455; Lumbard v. Pike, 33 Me. 291; McCrillis v. Wilson, 34 Me. 286; Redington v. Frye, 34 Me. 578; Johnson v. Pike, 35 Me. 291; Annis v. Gilmore, 47 Me. 152; Osgood v. Holyoke, 48 Me. 410; Thompson v. Gilmore, 50 Me. 429.

In order to remedy the defects and difficulties so apparent under the Maine statute of 1848, the legislature of that State in 1855 enacted a law in these terms: “ In all suits brought to enforce the lien given by the act to which this is additional (the act of 1848), such notice shall be given to the owner of the lumber as the court shall order, and the owner may come into court and defend such suit.”

With reference to the law as thus amended, Mr. Justice Cutting, in Redington v. Frye, 43 Me. 587, says: “ Proceedings in personam authorize, on mesne process, attachment of the property of the defendant, to respond the exigency of the writ and satisfy the judgment: whereas, proceedings in rem only authorize the attachment of the thing, and in that particular are in the nature of a libel; and in suits where the defendant is both the debtor and owner of the property on which a lien is attempted to be enforced, 'ordinarily no difficulty arises in embracing both proceedings in the same process. And the embarrassment has arisen in a great measure by an erroneous idea that the remedy of the contractor and his sub-contractor is the same: whereas, the former has his security on the goods and estate of his debtor, that is, in personam, as well as on the specific property benefited by his labor, which may be in rem, and after judgment it is optional with the creditor on which species of property he will levy his execution. In such cases an attachment of the debtor’s goods and estate might include the property on which the services were bestowed without any other specific directions to the officer in the writ, for indeed such property would belong to the debtor, subject only to the lien. * * But a sub-contractor has no claim against the owner of the property: his claim is only against the property (in reni), and the person and property of his employer (in personam). So that in such suits two classes of respondents become interested: viz., the contracting debtor and the thing specifically attached, in which the former may appear and defend against the claim on his person and property, and the latter, by its owner, against all lien claims.

“But heretofore,and until the enactment of the statute of 1855, the res could not be legally represented in court.”

He goes on to spealc of the necessity of this statute, in order that a party having rights which might otherwise be concluded by a judgment inter alios, might be protected by the notice provided for by the supplemental statute.

And he concludes by saying that “before the statute of 1855, it may be questionable how far a party had the constitutional privilege of seizing and confiscating the property of another, in violation of private rights, without an opportunity to be heard,” citing Marsh v. Flint, 27 Maine 479; and see also Bean v. Soper, 56 Maine 298.

These Maine authorities are conclusive to this point, at least, that under the laws of that State, substantially identical (before 1855) with our present statute of 1866, the sub-laborer’s lien could not be enforced by any such proceeding as the plaintiff has adopted in this case.

Our legislature has not, like that of Maine, and like those of other States, and like the act of Congress with reference to mechanics’ liens in the District of Columbia, obviated the necessity which required the adoption of those statutes, to affect the practical application of the lien laws to the case of sub-contractors.

And if it should be considered that a proper construction of our law requires us to hold that its purpose and intent was to give the lien to sub-contractors, without such provision or qualification as is afforded by such laws as the late statute of Maine, we should be inclined to deem it not “ questionable ” that, in its present form, it is entirely subversive of the fundamental principle of all free governments, that no person can be depived of or prejudiced in his property or rights by the judgment of any court, unless he has notice of such proceedings and an opportunity to defend.

That notice and that opportunity is not accorded by any provision of law, and is not afforded by any such process or practice as is adopted in the present case.

So far then as the statute may or must be construed as giving and enforcing the laborer’s lien by an action against the person or property of a party between whom and the plaintiff there has never been any privity of contract, it can only be regarded as unconstitutional and void.

Therefore, whether the one view or the other be adopted as the true one, the result must be a

Judgment on the verdict.

Since this opinion was delivered, the legislature has taken action upon the subject by the enactment of ch. 1, Laws of 1871.