Jenks, Barner & Co. v. Kress

4 Ohio N.P. 82, 6 Ohio Dec. 109, 1897 Ohio Misc. LEXIS 93

• Court: Cuyahoga County Common Pleas Court
• Decided: January 30, 1897
• Status: Published

Opinion

Dissette, J.

The plaintiffs bring their action against Cora L. Kress and Frederick A. Kress et ah, for the purpose of enforcing and collecting the sum of One Hundred and Eighteen and 20-100 ($118.20) Dollars, with interest from the 2nd day of January, 1896, by the foreclosure of a mechanic’s lien which they claim was assigned to them. They say, in substance, that in and by virtue of a written contract made between defendants and Cora L. Kress and one William B. Furgeson, dated September 27,1895, Furgeson was to erect and construct a certain building on certain property described, for the said Cora L. Kress and her husband Frederick A. Kress, and that there is due the said sum of $118.20 on that contract, wilb interest from the 2nd day of January, 1896; that on the 27th day of February, 1896, the said Furgeson sold and assigned all his right and interest in said account to the plaintiffs. They say, as a second cause of action, that said Furgeson, on the 9th day of March, 1896, and 'within four months from the time of the performance of labor, filed with the recorder an affidavit containing an itemized statement of the value of the labor and materials furnished, with credits and endorsements thereon, together with the time when said account should have been paid, and a description of said lands on which said building was erected, and a copy of the aforesaid •contract for the construction of said building, and that the same was duly recorded. That on the 27th day of February, 1896, the lien of said Fur:geson, or the lien which he claimed to have, was duly assigned to plaintiffs; and they now ask for a judgment against the defendant Cora L. Kress aud her husband Frederick A. Kress, for the sum of $118.20 aforesaid, with interest from January 2, 1896, and for the sale of said lands, enforcement of the lien, and payment of plaintiff’s claim, and for such •other and further relief as they may be entitled to.

To the second cause of action of this petition, Cora L. Kress and her husband, Frederick A. Kress, file their demurrer for the reason that it •does not state facts sufficient to constitute a cause of action.

It will be seen that the lien here claimed is the lien of the original •contractor, and that it is for a balance due on the final payment of the .amount claimed in the contract.

The mechanic’s lien law has been the subject of a great deal of litigation quite recently, and our Supreme Court has passed its judgment upon that portion of it which was amended April 13th, 1894; and since that decision it has been a serious question with the lawyers and the •courts whether the whole mechanics’ lien law had been wiped out by the •Supreme Court. Those legislative amendments sought to introduce into the mechanic’s lien law a right to give a lien on the property of the owner, to sub-contractors, laborers, and those who furnished machinery and materials for the construction of a building by the owner under a contract between the principal contractor and the owner. It will be noticed that in that legislation, section 3158 of the Revised Statutes, as it stood before the act of 1894, was not interfered with in any way except by making a •supplemental section thereto. Section 3158 is the section which provides for the manner in which the principal contractor may obtain a lien upon the premises of the owner, and it remains just the same as it as before the act of 1894. There would be no doubt in the mind of any person •carefully reading this ’ section and the decision of the Supreme Court, together with the legislation of 1894, that the legislation did not interfere with the lien of the principal contractor, if it were not that section 8184 had been amended and this act passed upon by the Supreme Court.

Section 8184 may be said to be the section that defines who may obtain a lien under this law. It was so amended and enlarged as to provide that the sub-contractors, laborers, material men and persons furnishing machinery, having no contract relations with the owner, might ■obtain a lien upon the owner’s property, and by the legislation of 1894, this original section 3184 was repealed; and it is now contended that the decision of the Supreme Court referred to, having declared that section unconstitutional, leaves that entire section 8184 as amended, repealed, .and that no person now1, neither contractor nor anyone else, can obtain a mechanic’s lien, as the section providing and defining who may obtain •a.mechanic’s lien as it originally stood has been repealed, and the one that was substituted by the legislature in its place has been declared unconstitutional. This, I think, is giving to the decision of the Supreme Court a broader effect than the Supreme Court intended.

■ Referring to the syllabus of the decision of the Supreme Court, we find in paragraph four this language:

W. M. Reynolds, for Plaintiff. Dickey, Brewer & McGowan, for Defendant.

“The act of April 13th, 1894, 91 Ohio Laws, 135, in so far as it gives a lien upon the property of the owner to sub-contractors, laborers and those who furnish machinery and materials or title to the contractor, is unconstitutional and void. All to whom the contractor becomes indebted in the performance of his contract, and are bound by the terms of the contract between him and the owner. ”

So that the Supreme Court has carefully guarded its decision, and has defined the limits of its operation. The act is not, as a whole, declared unconstitutional, but only in so far as it does those things which the court determines to be unconstitutional. The act, then, as amended, still provides for the lien of the principal contractor, and I am held to conclude that it is still in force for the purpose of giving the principal contractor a right to perfect the lien under section 3185. The demurrer, therefore, must be overruled.