The opinion of the court was delivered by
Langford, J.
This is an action wherein the plaintiff seeks to foreclose a lien upon the building of Dueber for materials furnished by said plaintiff in the construction of [612] said building, at tbe instance of McChesney and Steele, the main contractors with Dueber. The point to be decided arises upon a general demurrer to the complaint by Dueber. The complaint is admitted to be perfect and sufficient in all respects, unless it is insufficient by reason of its not gating that Dueber had not paid said main contractors. If this is a material fact in the case, is it necessary that this negative shall appear affirmatively in the complaint, or, if true, must this be pleaded in the answer? It is too well settled to be a proper rule of pleading, that a defendant who relies upon payment as a defense must plead it in the answer, to require argument or authority. The amount of business which a district court has to perform in a short time deprives it of an opportunity to deliberate, but it must decide a .case immediately, as it is presented in argument. Judging by the argument here, we presume that the point whether the payment or non-payment by the owner to the main contractor arose upon the demurrer to the complaint was not considered. The arguments and briefs here assume that the owner paid the main contractor, and the parties' insist that this court shall decide the case as if this question arose upon the demurrer to the complaint, and no doubt this is the only point of law deemed material by the parties. We will proceed to decide it.
The point is made that a statute which' would give a lien to a laborer or material-man, notwithstanding that payment had been made to the main contractor, is unconstitutional. We think such a statute is constitutional, as to all transactions occurring after the statute is passed, for the reason that it doesnot impair the obligations of existing contracts, but merely declares the effect of future contracts. Do the words of this act clearly express the legislative intent that a material-man or laborer shall have such lien notwithstanding the main contractor has been paid ? The act to be considered is that of 1881, found in the code, and embraced in the code -from § 1939 to 8 1985, inclusive. [613] Omitting tbe words which include other than this class" of claimants, we have these words: Every person performing labor upon, or furnishing materials to be used in, the construction of a building, has a lien upon the same for the work or labor done, or for material furnished, by each, respectively, whether furnished at the instance of the owner or his agent; and for the purpose of this act every contractor, subcontractor, architect, builder or person having charge of the construction, shall be held to be the agent of the owner. Sec. 1957. Such liens are superior to any which may attach subsequent to the time when the work was commenced to be done or material commenced to be furnished. Sec. 1960. Should the owner desire to prevent the lien attaching, as herein provided for, in cases where he or they have not themselves contracted for the construction, he may do so by posting a notice on the land in some conspicuous place on the land or improvement, which must be posted within ten days after the owner has knowledge of the making the improvement. Sec. 1965. The liens provided for may be enforced in the same manner and under the same proceedings as govern in the foreclosure of mortgages upon real estate. Sec. 1971. The contractor may recover upon a claim only such amount as may be due him after deducting all claims of other parties for work done or materials furnished; and, in case of a judgment against the owner by the main contractor, the owner may deduct any claim of material-men and laborers. Sec. 1966. It would be difficult to use more definite and clear language to express an intent than is used here. If it was the intention to declare that the material-man or laborer shall have a lien in plain words, not limited by the context, yon have it here. If plain, positive words are not sufficient, the legislature has said that whether the materials were furnished at the instance of the owner or contractor the lien attaches. Then still to add force it says that the contractor is made the agent of the owner for the purpose of making the lien good. [614] This word “agent” has an accepted legal and popülar meaning, and makes all contracts, notices and knowledge of tbe main contractor that of the owner himself. The owner is bound bv the acts of his agents. It makes the owner privy with both contractor and subcontractor. To make the intent still more emphatic, the legislature has made an exception to this liability of the owner, by providing that in one way he may escape this responsibility, to wit, by posting a notice on the premises. Here we have not only the most appropriate affirmative words to express a certain intent, but we have one exception to the liability also expressed.
If these words do not express the intent of the legislature, that laborers and material-men have a lien, notwithstanding the owner may have, by contract and payment to another, attempted to defeat it, no words can express that intent. To hold to the contrary would be to hold that English words had not an English meaning; that technical words have not their legal meaning; that exceptions mentioned do not include all the exceptions intended; in short, that such an intent cannot be expressed by any language. Eor a court to find that statutes thus explicit do not express the legislative intent is simply for the court to deny that the legislature has legislative power, and, instead of enforcing statutes, to destroy them at pleasure upon any pretext, no matter how absurd.
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The opinion of the court was delivered by
Langford, J.
This is an action wherein the plaintiff seeks to foreclose a lien upon the building of Dueber for materials furnished by said plaintiff in the construction of [612] said building, at tbe instance of McChesney and Steele, the main contractors with Dueber. The point to be decided arises upon a general demurrer to the complaint by Dueber. The complaint is admitted to be perfect and sufficient in all respects, unless it is insufficient by reason of its not gating that Dueber had not paid said main contractors. If this is a material fact in the case, is it necessary that this negative shall appear affirmatively in the complaint, or, if true, must this be pleaded in the answer? It is too well settled to be a proper rule of pleading, that a defendant who relies upon payment as a defense must plead it in the answer, to require argument or authority. The amount of business which a district court has to perform in a short time deprives it of an opportunity to deliberate, but it must decide a .case immediately, as it is presented in argument. Judging by the argument here, we presume that the point whether the payment or non-payment by the owner to the main contractor arose upon the demurrer to the complaint was not considered. The arguments and briefs here assume that the owner paid the main contractor, and the parties' insist that this court shall decide the case as if this question arose upon the demurrer to the complaint, and no doubt this is the only point of law deemed material by the parties. We will proceed to decide it.
The point is made that a statute which' would give a lien to a laborer or material-man, notwithstanding that payment had been made to the main contractor, is unconstitutional. We think such a statute is constitutional, as to all transactions occurring after the statute is passed, for the reason that it doesnot impair the obligations of existing contracts, but merely declares the effect of future contracts. Do the words of this act clearly express the legislative intent that a material-man or laborer shall have such lien notwithstanding the main contractor has been paid ? The act to be considered is that of 1881, found in the code, and embraced in the code -from § 1939 to 8 1985, inclusive. [613] Omitting tbe words which include other than this class" of claimants, we have these words: Every person performing labor upon, or furnishing materials to be used in, the construction of a building, has a lien upon the same for the work or labor done, or for material furnished, by each, respectively, whether furnished at the instance of the owner or his agent; and for the purpose of this act every contractor, subcontractor, architect, builder or person having charge of the construction, shall be held to be the agent of the owner. Sec. 1957. Such liens are superior to any which may attach subsequent to the time when the work was commenced to be done or material commenced to be furnished. Sec. 1960. Should the owner desire to prevent the lien attaching, as herein provided for, in cases where he or they have not themselves contracted for the construction, he may do so by posting a notice on the land in some conspicuous place on the land or improvement, which must be posted within ten days after the owner has knowledge of the making the improvement. Sec. 1965. The liens provided for may be enforced in the same manner and under the same proceedings as govern in the foreclosure of mortgages upon real estate. Sec. 1971. The contractor may recover upon a claim only such amount as may be due him after deducting all claims of other parties for work done or materials furnished; and, in case of a judgment against the owner by the main contractor, the owner may deduct any claim of material-men and laborers. Sec. 1966. It would be difficult to use more definite and clear language to express an intent than is used here. If it was the intention to declare that the material-man or laborer shall have a lien in plain words, not limited by the context, yon have it here. If plain, positive words are not sufficient, the legislature has said that whether the materials were furnished at the instance of the owner or contractor the lien attaches. Then still to add force it says that the contractor is made the agent of the owner for the purpose of making the lien good. [614] This word “agent” has an accepted legal and popülar meaning, and makes all contracts, notices and knowledge of tbe main contractor that of the owner himself. The owner is bound bv the acts of his agents. It makes the owner privy with both contractor and subcontractor. To make the intent still more emphatic, the legislature has made an exception to this liability of the owner, by providing that in one way he may escape this responsibility, to wit, by posting a notice on the premises. Here we have not only the most appropriate affirmative words to express a certain intent, but we have one exception to the liability also expressed.
If these words do not express the intent of the legislature, that laborers and material-men have a lien, notwithstanding the owner may have, by contract and payment to another, attempted to defeat it, no words can express that intent. To hold to the contrary would be to hold that English words had not an English meaning; that technical words have not their legal meaning; that exceptions mentioned do not include all the exceptions intended; in short, that such an intent cannot be expressed by any language. Eor a court to find that statutes thus explicit do not express the legislative intent is simply for the court to deny that the legislature has legislative power, and, instead of enforcing statutes, to destroy them at pleasure upon any pretext, no matter how absurd.
We are asked -to do this, because it is said that a similar statute of the State of California was construed out of existence by one or two decisions of that state; that as a matter of law our legislature is conclusively presumed to have incorporated the California decision into the act. If this is true, then it is clear that our legislature did not intend what it expressed in plain, unambiguous language. Such a presumption is not conclusive. Those cases cited, which hold the presumption conclusive, refer to English statutes, and decisions under them, imported from England as a part [615] of tbe common law, and afterwards expressly re-enacted. Tbey stand upon the presumption that every man knows the law to which he is subject. Decisions of foreign states upon foreign statutes, which are never the law of the land, stand upon quite another principle. In this latter case no man is presumed to know them, except in so far as they become so incorporated into the history of the country that to suppose them unknown would be unreasonable. The legislature of Washington is no more presumed to have known theseCalif ornia decisions than the court is presumed to know the decision of every state court upon each statute of each state. We think that the presumption that the legislature knew the plain import of the language they used is much stronger than the presumption that they knew of one or two decisions of the supreme court of California. The act now being considered was passed in 1881, and at that time the same statute had been adopted in Nevada and New Mexico. The supreme court of that state, and also of that territory, had, at that time, enforced the statute according to its words; so the presumption would be that the legislature, when it passed this act, supposed that the courts of this territory would enforce this act according to its terms, as the courts of New Mexico and Nevada had done. We conclude, then, that a laborer or material-man has a lien if he complies with the statute, notwithstanding the owner may have made different arrangements with, or has paid, the main contractor.
The judgment of the district court is therefore reversed, and the case remanded to the same court for a new trial according to this opinion.
Bueee, C. J., and AllyN, J., concur.