Williams v. Webb

2 Disney (Ohio) 430

• Court: Ohio Superior Court, Cincinnati
• Decided: January 15, 1859
• Docket: No. 8,736
• Status: Published

Opinion

Gholson, J.,

delivered the opinion of the court.

A petition in error filed in this case presents for the consideration of the court certain questions as to the proper construction of the “ Act to create a lien in favor of mechanics and others in certain cases.”

One question is whether the death of the owner before a lien has been taken, under the first and seventh sections of the act, or the enactment amendatory of the 7th section, interferes with the right which the person performing labor or furnishing materials would otherwise have. The ease is not under the 9th section, which provides for unfinished work, but a case where the time of the work being done, and the materials furnished, was during the life of the owner; but the time for taking a lien had not expired, nor had the required steps been taken during the life of the owner. Does his death prevent those steps being taken ?

It appears to us that both upon principles of justice, and upon the fair construction of the statute, it does not. The lien is expressly given by the first section. The steps required are in the nature of conditions subsequent. In none of those steps is the personal act or participation of the owner required. If the terms of those conditions have been strictly complied with, we would be really adding something to the law, to say that a condition, that the owner should survive the taking the proper steps to secure the lien, is required.

Another question is, whether the oath to the account, in writing off the'items of labor, skill, material or machinery furnished, required by the 7th section, can be made by an agent, or only by the person entitled to the lien. It is claimed that, according to the language of the statute, the personal oath of the party performing the labor or furnishing the materials is required, and that of no other person will suffice. We are admonished that such statutes as this should be strictly construed.

While we might be disposed, to accede to the general proposition, that such statutes should not be extended beyond what their terms clearly import, yet this does not require us to stick to the letter. Taking the term, “ any person entitled to a lien under this act,” it certainly extends to a case where two or more persons are jointly interested —to the case of a corporation formed for manufacturing purposes. If this be so, then the oath of the person who actually and personally performed labor, or furnished materials, is not, and can not be required. The oath, it will be observed, is in no respect binding or conclusive upon any one: it is only intended to prevent vexatious and unfounded liens being entered upop. the records ,• and looking to this object, we see no reason to doubt, that the oath of an agent acting in the business, and, therefore, acquainted with the facts, is sufficient. Any other conclusion would be attended with extreme inconvenience, and we think that the general maxim qui facit per aliam facit per se may be safely applied in the construction of this statute.

It is further claimed, by the administrator of the party, for whom the labor was performed and the materials furnished, that he had no real and beneficial interest in the lot of land upon which the building stood. It appears that he was in possession ; that he had made some arrangement by which he was or might become entitled to a lease from the owner of the fee. Under these circumstances we think that it is not competent for such a party or his representative, as against those whose labor or materials he has procui’ed, to deny that he has an interest. They have the right to be placed in such a situation as will enable them to assert any possible interest. To such a course the party or his representative can properly interpose no objection.

There are no other objections which we are required to notice, and the judgment will be affirmed.

Judgment affirmed.