Blake, C. J.
The complaint, among other things, alleges that: “And plaintiff avers that, in addition to the sum specified and mentioned in said contract, the said plaintiff, for and at the special instance and request of said defendant, Reinhold H. Kleinschmidt, performed extra work and furnished extra materials, over and above those specified in said contract, the price of which was and is the sum of ... . $763.40, making the total price of the work done and materials furnished by said plaintiff on said buildings the sum of ... . $57,473.40,” The account which was filed by the respondent for the purpose of securing a- mechanic’s lien upon the property contains this statement: “ That in addition thereto certain extra work and materials furnished, over and above those specified in said contract, were furnished and done by said Daniel P. Wortman on said buildings and structures, at the request of said Reinhold H. Kleinschmidt, the value of which was and is the sum .... $763.40.” The account consists of these items, which are not set forth in the pleadings: —
To contract for building granite block............... $56,710 00
To extra work and sundries on same, as follows:
Sept. 12th.
To freight and transfer on glass........................ 19 69
To extra work on floor.............. 72 00
To rubblestone and carpenter work..................... 7 00
To extra work per special contract on first-story
ceiling..................................................... 235 00
To setting and moving vault doors:
640 brick....................................... $ 5 44
Labor............................................ 12 00
Brick mason.................................. 21 00
-- 38 44
To freight and transfer on 4 boxes of glass........... 13 70
To 55 feet cherry dado, at $3.75...................... 206 25
To one door and frame, with trimmings in basement 16 00
To plastering in basement............................... 6 12
To 16 feet of base......................................... 2 60
[321]*321To steps to annex second story.......................... $ 12 00
To door in elevator shaft................................ 3 00
To 29 hours’ work ordered by Scott, at 40c......... 11 60
To electric work on elevator............................. 120 00
Por’d..................................................... $57,473 40
The answer denies that, “in addition to the sum mentioned and specified in said contract, plaintiff, for or at the special' instance and request of defendant, K. H. Kleinschmidt, performed extra work, or furnished extra materials, over and aboveJ those specified in said contract, the price of which was or is the sum of $763.40, or any other sum whatever; or that the total price for the work done or materials furnished by said plaintiff on said buildings is the sum of $57,473.40, or any other sum than the sum of $56,710. And defendants aver that, if the plaintiff performed any extra work, or furnished any extra materials, as set forth in plaintiff’s said complaint, he did not perform the same in accordance with the terms of his said contract set forth, and should not now be allowed to make any; additional claim for work done, for the reason, as defendants are informed and believe, none of said extra work was done in pursuance of a written order from the architects, and no notice •of any claim for extra work was made at any time by plaintiff to the architects in writing, within three days from the beginning of said work, as required by the contract, a copy of which is set forth in plaintiff’s complaint.”
The replication is as follows: Plaintiff “avers that the additional work, labor, and materials, over and above that specified in the contract, which is set out in the complaint herein, were done and furnished by plaintiff on the buildings, in said complaint mentioned, at the instance and request of defendant Kleinschmidt, as set forth in paragraph 2 of the complaint herein, and were done and furnished, and the contract therefor ■ made, long subsequent to the execution and delivery of said first-mentioned contract, and were all ordered and accepted, used and enjoyed, by said defendant Kleinschmidt, and were for his use and benefit; and were done and furnished on his promise to pay for the same; and were all done and furnished with the full knowledge of his architects and agents; and that no demand [322]*322or intimation was made to plaintiff that he should have any written order therefor, nor was he in anywise notified to claim compensation therefor in writing, nor in any other manner j wherefore plaintiff avers that said defendant should be now barred and estopped from asserting the necessity of any written order or paper for such extra work and materials.”
The contract is made a part of the complaint, and provides expressly for the payment of work of this character: “The contractor shall make no claim for additional work unless the same shall be done in pursuance of a written order from the architects, and notice of all claims shall be made to the architects in writing within three (3) days of the beginning of such work.”
The case was tried upon these issues. The appellants objected to the introduction of any testimony in support of the claim for additional work or materials, upon the ground that the contractor had not complied with the plain terms of the agreement. The objection wras overruled, and the jury were instructed in this language: “Upon the question of extra work you are instructed that if you believe from the evidence that Wortman did or performed any work, or furnished any materials, upon the said buildings of Kleinschmidt, extra and in addition to the work or material specified in his contract, and that said work was done and material was furnished at the request, or with the knowledge and consent, express or implied, of said Kleinschmidt or his agents, then the jury are instructed that the plaintiff is entitled to recover the reasonable value of such extra work and material from the defendant, and you should so find by your verdict.”
Wortman, the respondent, testified: “By the order of Kleinsehmidt and his superintendent, the architects, and from drawings made by the architects — all but one instance — the flooring in the middle room of the granite block I laid through Kleiuschmidt’s order, Paulsen being present, and he agreeing to pay me the sum of $72; and the cherry dado in the center room of the granite block — Kleinschmidt and Paulsen being present — Kleinschmidt agreed to pay me $3.75 a lineal foot for the cherry dado, it being five feet high. I had to send to St. Paul for that. If my memory serves me right, I had a com[323]*323munieation in writing with Kleinschmidt about the cherry dado in the month of July.”
This communication was then read: —
“Helena, Mont., July 25, 1890.
“JR. H. Kleinschmidt — Dear Sir: I propose to lay Oregon floor in center room, first story of granite block, for the sum of $72; also to put cherry dado five feet high in the entrance to same for $3.75 per foot; you allowing five days’ extention of time on account of dado. Respectfully submitted,
“Daniel Wortman.”
The respondent testified further: “Kleinschmidt instructed me to go ahead and do the work, and- instructed me to go to Paulsen for a detail as to the dado. Another of the extra items was, I put a wooden formation on the first-story ceiling of the annex building. The ceiling was first plastered as per the plans and specifications, and then there was a formation put across it. . . o . The price of that ceiling was submitted to Kleinschmidt, if my memory serves me right, in the same manner that these other two were, and he accepted it,.and referred me to Paulsen as to a detail.....Paulsen furnished the detail, and I furnished the material, and I executed the work.”
Respondent also testified that Kleinschmidt had at one time a superintendent, one Milligan, who bought some rubblestone. “In laying the center floor this Milligan and Kleinschmidt agreed that he should strip the floor, it being very crooked, and I was to lay the floor on the strips; but Milligan requested me as Kleinschmidt’s superintendent, to lay those strips, and allowed me three or four or six dollars, I forget the exact amount, for that work; I think the whole thing is some eighty odd dollars.” The plans were changed so that two money vaults in the annex building were constructed, “as desired by Kleinschmidt and his architects,” upon the opposite side of the room from what was originally designed. The position of the closets in the basement of the annex building was changed from the northwest corner to the southwest corner, in accordance with the request of “ Kleinschmidt and his superintendent.” Respondent further testified: “I moved them, and in addition set a partition about six feet long and ten feet high, plastered on either side, and an additional partition of one wall, about eight feet long and eight [324]*324or nine feet high. In that partition is a door of yellow pine, a door frame, casings on both sides, and a base on either side of the partition. I also, at the order of Kleinschmidt and his superintendents, put in the elevator shaft in the basement of the granite block; a door not provided for in the plans or specifications — about two and a half or three feet wide, and three and a half or four feet high, .... screwed on the inside, and a frame and the casings on one side, and hung for the purpose, as represented by these parties, of more readily getting to the elevator, or the elevator machinery. That is all, I believe; that is the extras that I did.” The respondent also testified that the appellants did not say anything about the requirements of the contract that extra work should be ordered in writing, when any of these accounts were presented for payment;. and that Paulsen, the architect, was present when the extra materials ■were contributed and the extra work was done. The respondent further testified: “There was other work omitted — a partition in the basement of the granite block, running from the north side of the granite block basement to the elevator, where it no.w stands. The value of that work, agreed upon by Kleinschmidt and myself, in the presence of his superintendent, Mr. Scott, was $120. The value of the electric work, omitted was $1,000. I have given the defendant credit in this action with those sums.” No other evidence was offered by the respondent upon this issue.
Upon the part of Kleinschmidt, a letter was read, which was addressed to the respondent by the architects, and we quote a part which relates to the proposition concerning certain work:—
“Mr. D, P. Wortman, Contractor — Dear Sir: Mr. E. H. Kleinschmidt rendered us this morning three notifications received from you, and in regard to them will state as follows: .... Your proposition to lay Oregon floor in center room, first story of grauite block, including leveling up same, for the sum of $72, without any extension of time or other consideration, is accepted by Mr. Kleinschmidt. The putting in of cherry dado five feet high, in middle entrance of center store of granite block, at $3.75 per running foot, straight measurement, and five days’ extension of time for placing the same, is not [325]*325accepted, as Mr. Kleinschmidt does not want to make any other improvements which will delay the completion of the work.
“ Respectfully yours, Paulsen and McConnell.”
Kleinschmidt testified: “Question. You put all your agreements in this contract and specifications, and you have never done anything else? Answer. If I did it is in writing. I never made any other arrangements of any kind that I remember of.” Mr. Paulsen testified: “ With slight alterations, the building known as the ‘Granite and Annex’ building was put up strictly according to the contract and specifications as originally drawn. There were some alterations; those alterations were mostly agreed between the contractor and the owner. I ordered some myself. On the south part of the annex building the joists were changed — instead of 2-16 they are 4 by 8. The origiual plans required the joist to be sunk in the north wall of the granite building. Q. Then it was changed in that respect? A. Wortman asked me about that. The intention was to cut the joist in the stone wall, and, when we got at it, it was pretty hard to cut in the stone wall, and at the same time it is not an improvement for the wall; and so Wortman asked me if I had any objection if he would put studding on the outside of the granite block, and I consented to that, provided it would not take any extra money.” The witness did not testify about any other alterations which were not within the contract.
When this testimony is compared, it will be observed that the respondent complied with the contract respecting one item, “extra work on floor,” and is entitled to recover the sum of j $72 therefor. The claim of $206.25 for the dado should be rejected, in the light of the letter which was sent to the respondent, stating that his proposition concerning the same was not accepted. The following items are not supported by the proof: Electric work on the elevator, $120; freight and transfer on glass, $19.69 and $13.70; steps to annex, second story, $12; and work ordered by Scott, $11.60. The other items are summarized as follows: Rubblestone and carpenter work, $7; changing location of money vaults, $38.44; changing location of closets, $24.72; work on ceiling, first story, $235; and door in elevator shaft, $3. The entire account for extra work and materials must be adjusted by the same legal rule.
[326]*326The respondent testifies that this labor was done and the materials were furnished by the order of Kleinschmidt and his superintendent, and from drawings prepared by his architects. Kleinschmidt and his architects testified that the contract and specifications, with the exceptions which have been pointed out, were adhered to, and therefore there could be no extra work. There is no evidence that such work .was done or the materials were furnished upon the promise of Kleinschmidt to pay therefor. Let us recur to the contract, and ascertain the extent of the undertaking of the respondent. The first article provides that “the contractor shall and will well and sufficiently perform and finish, under the direction and to the satisfaction of Paulsen and McConnell, architects (acting as agents of said owner), all work included in the entire completion of the granite block and annex building.....” The third article provides that “should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architects, and the sum herein agreed to be paid for the work according to the original specifications shall be increased or diminished, as the case may be. In case of such valuation, the contractor shall proceed with the alteration, upon the written order of the architect, and the valuation of the work added or omitted shall be referred to three (3) arbitrators.....” The thirteenth article provides that “it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and materials shall be $56,710, .... subject to additions or deductions on account of alterations, as hereinbefore provided.....” What, then, is the effect of these conditions of the contract upon this demand of respondent for payment by reason of extra work and materials? There is a lack of harmony in the authorities regarding this legal problem, and the position of respondent is evidently sustained by a number of cases. It is our duty to apply to this contract the principle which seems to be supported when tested by the reason of the law. While this instrument represents the deliberate intention of the parties, and has been entered into for their mutual benefit, it is a protection of great value to the builder, the respondent. The [327]*327owner derives the advantage of all labor which may be performed upon his premises. If this work has not been included within the terms of the agreement, the remedy of the contractor is distinctly set forth, and payment can be secured and enforced whenever the order for extras has been reduced to writing. If he pursues, any other course, he exchanges certainty for chaos.
A leading English case is that of Russell v. Da Bandeira, 13 Com. B. N. S. 149, and Lord Chief Justice Erie said: “It almost invariably happens that, in the course of the construction of a house, or ship, or other extensive work, the party for whom the work is done from time to time desires to have additions and alterations; and it is by no means an unusual thing to insert a clause providing that the employer shall not be liable for extras or additions unless there be an order in writing fixing the price, or the certificate of an architect for the work so done. In many cases the court, though satisfied that the builder, acting upon the faith of an oral request, has fairly done the work for which he seeks to be paid, has felt itself to be fettered by the express terms of the bargain the parties have entered into. We cannot yield to suggestions of hardship on the one side or the other, though I must confess that, according to my experience, the hardship has most commonly been upon •the side of the employer. By the terms of this contract the £10,400 is inclusive of all charges for the ship, finished and fitted perfectly in every respect, and no charges are to be demanded for extras. But any addition or additions which •may be made by an order in writing of Sir George Sartorius, as an extra or extras, are to be paid for at a price to be previously agreed upon in writing. No additions were ordered by the admiral in writing; but, during the progress of the work, orders were from time to time given, by persons who represented the Portuguese government, for additions and alterations for which, under ordinary circumstances, Mr. Scott Russell might well suppose he was to be at liberty to charge. He might have declined to comply with these requests unless they were made in writing. I feel bound to give effect to the terms of the contract, and to hold that the extras and additions supplied, not under written orders during the performance of the contract, [328]*328form part of the contract for the construction of the ship, and are not to be paid for by the defendant.” Mr. Justice By les, concurring, said: “ The contractor has no right to complain if he loses the price of extras and additions which, in disregard of the stipulation he has entered into, he furnishes without getting, a written authority.” i :
The case of Abbott v. Gatch, 13 Md. 314; 71 Am. Dec. 635,. is in point, and Mr. Justice Tuck, for the court, said: “In the contract there is this clause: ‘No extra charges to be made unless a written agreement be made and attached to the contract/ In the progress of the work alterations were made, and portions of the mill put in, as the plaintiff contends, not embraced by the terms of the contract, without the parties availing themselves of the above provision; and one of the questions in the cause is, Can the plaintiff demand additional compensation beyond the sum stipulated for the entire work? .... We take the true-construction to be that there was to be no charge for extra work, that is, for any work beyond that stated in the contract, no-matter what it might be, whether alterations in the plan or mode-of doing the work, or additions or improvements in and about the completion of the mill, unless reduced to writing and attached. It makes no difference if the extra work was-ordered by the owner, provided it was on the mill. As we have said, the builder need not accede to the owner’s views; he may refuse, or he may assent, under the protection afforded by this clause. If extra work be done without [it, the right to-additional compensation is waived. Any other interpretation of such words would make them valueless to the parties. The appellee’s view, if adopted, would deny to the owner the privilege of suggesting any, the most trivial, alteration of the work, without incurring the risk of opening the whole contract. Then the written agreement would be substituted by a mere quantum meruit claim for the work and labor, and to be afterwards adjusted upon uncertain oral testimony. And, in many cases,, his mere presence on the premises might subject him to extra charges, on the ground of acquiescence in alterations made by the builder, when it might well be supposed there was to be no additional charge, because not previously attached to the contract.....We cannot distinguish this agreement from that [329]*329passed upon in the case of Cemetery Co. v. Coburn, 7 Md. 202.” In the case which is last cited the same learned justice in the opinion said : “ The appellee sues to recover compensation for two windows, placed in the gateway by direction of the architect, which it is said became necessary to its symmetry and beauty, in consequence of the two chimneys having been placed in a position different from- that contemplated by the original plan. It is said, on the part of the appellee, that these windows were additional work, not part of the original design, and therefore not such an alteration as was necessary to be indorsed on the contract. In this we do not agree.....The plaintiff must have known that he could not make the alteration and charge for it unless the assent of the parties was indorsed on the contract. The stipulation provides, not only that the price shall be agreed upon beforehand and indorsed, but also that, if this is not done, it shall be taken as an agreement to make the alteration without any change in the price from the original contract. If the plaintiff, relying on the assurance of the architect, chose to perform this work without placing it within the protection afforded to the parties by an indorsement on the contract, he must bear the consequences.” (See, also, Lloyd on Building Contracts, § 48, and cases cited; Sutherland v. Morris, 45 Hun, 259; Duncan v. Board etc. of Miami Co. 19 Ind. 154; Scammon v. Denio, 72 Cal. 393; Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Hanley v. Walker, 79 Mich. 607.)
We approve the doctrines which have been laid down in the foregoing authorities. The contrary rule is a dangerous standard, and impairs the value, and renders uncertain every written contract for the construction of an edifice. There is no ambiguity in this agreement, which was made for the “entire completion” of the building by Wortman, for Kleinschmidt, at a certain price. The contractor was not required to make any alterations, or perform any extra work, without an order in writing from the architects. The articles of the contract are just and equitable to both parties, and cover every contingency which may arise during the period of its fulfillment. The court erred in its instruction to the jury upon this branch of the case, and did not give proper weight to the express provisions of the contract. They were not informed concerning the effect of a [330]*330■waiver by Kleinsehmidt of any of its articles, or the performance of such work upon his independent promise to pay therefor. These important qualifications were ignored, and the jury were instructed that, notwithstanding this obligation in writing, they could find for the respondent for the reasonable value of what was designated “extra work,” if the same was done “at the request, or with the knowledge and consent, express or implied, of said Kleinsehmidt or his agents.” We are aware that the parties could make an oral agreement by mutual consent, and modify the original contract, but the evidence does not tend to prove that this event occurred. Under the pleadings and contract, we are of opinion that the respondent is not entitled to recover any amount for so-called “extra work,” except the said sum of $72. The stipulations of the contract should be enforced, and we find that the judgment is excessive in the sum of $691.40. We are unable to understand the reasons for the omission of respondent to observe the simple provisions which insured his compensation without difficulty or litigation.
The sixteenth legislative assembly, by an act approved March 14, 1889, added to section 1394, fifth division of the Compiled Laws, the following: “ Whenever, in any action or suit hereafter brought for the purpose of foreclosing a lien or liens under the provisions of this act, and judgment is therein rendered for the plaintiff or any person claiming or holding a lien upon any property, the court may order, and it is hereby made the duty of the judge thereof to order, that the defendant against whose property the lien is filed shall pay as costs a reasonable attorney fee, to be fixed and allowed by the court, and to be collected as are other costs in the action.” It is maintained by Kleinschmidt that this amendment does not apply to the mechanic’s lien law as a whole, but is restricted to the ranchmen, herders, and other persons who are enumerated in that section. We think its provisions embrace the chapter which is entitled “Liens.”
It is insisted that the act is unconstitutional; that it impairs the obligations of contracts; that it deprives one of his property without due process of law; and that it discriminates unfairly against the owner of property upon which the lien is sought to be enforced. The Constitution of the State [331]*331ordains that “courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay.” (Art. iii. § 6.) The contention of Kleinschmidt is that this requirement concerning ■ attorneys’ fees is, in substance, a provision for the sale of justice,! and reliance is placed upon the following authorities: Calder v. Bull, 3 Dall. 386; Durkee v. Janesville, 28 Wis. 464; 9 Am. Rep. 500; Wilder v. Chicago etc. Ry. Co. 70 Mich. 382; Schut v. Chicago etc. Ry. Co. 70 Mich. 433; Rinear v. Grand Rapids & I. R. R. Co. 70 Mich. 620.
In Durkee v. Janesville, supra, the court held that an act of the legislature providing that no costs shall be recovered against the city of Janesville, in certain classes of actions, was void. In Wilder v. Railroad Co. supra, the court adjudged that the law allowing the plaintiff, in a suit against a railroad company to recover damages for injuries to his cow, to tax an attorney’s fee of $25 as a part of his costs, was unconstitutional. To the same effect are Schut v. Railway Co. supra, and Rinear v. Railroad Co. supra. There are general observations in these cases which uphold, in some respects, the contention of appellants, but the facts make them inapplicable to this controversy. Chief Justice Sherwood, in Schut v. Railway Co. supra, said: “This section provides that until the company has fenced its right of way, as required by law, it 'shall be liable for all damages done to cattle or other animals thereon,’ to be recovered by the owner thereof, 'together with an attorney’s fee of $25, to be taxed as costs against the defendant,’ in case of a recovery.” The ground upon which the Supreme Court of Michigan annulled this statute is clearly expressed by Mr. Justice Morse in Wilder v. Railway Co. supra: “The legislature cannot make unjust distiuctious between classes of suitors without violating the spirit of the Constitution. Corporations have equal rights with natural persons, as far as their privileges in the courts are concerned.” These decisions were followed in Lafferty v. Chicago etc. Ry. Co. 71 Mich. 35; and Grand Rapids Chair Co. v. Runnels, 77 Mich. 104. The “Log Lien Law” was involved in-the last ease. Statutes embodying provisions of like character have been pronounced constitutional by the courts of Kansas, Illinois, Mia[332]*332souri, and Iowa, and the grave objections which have been pointed out in the opinions supra are deemed groundless. (Kansas Pac. Ry. Co. v. Mower, 16 Kan. 573; Peoria etc. Ry. Co. v. Duggan, 109 Ill. 537; 50 Am. Rep. 619; Perkins v. St. Louis etc. Ry. Co. 103 Mo. 52; Burlington etc. Ry. Co. v. Dey, Iowa, Feb. 9, 1891, 48 N. W. Rep. 98.)
The law of this State which has been complained of operates, equally upon corporations and persons, and is not obnoxious to the criticism of the courts of Michigan and Wisconsin. The case of Grand Rapids Chair Co. v. Runnels, supra, is founded upon the same deductions which had been announced in prior decisions of that court. In Rapp v. Spring Valley Gold Co. 74 Cal. 532, the court, in an action to foreclose a mechanic’s lien, said: “The attorney’s fee in this kind of caséis not, strictly speaking, part of the costs. If allowed by the court, it need not be placed in the memorandum of costs. But it was properly allowed for the same reason that costs were allowed, viz., that it was a necessary incident of the judgment.....” In McIntyre v. Trautner, 78 Cal. 449, the court affirmed Rapp v. Spring Valley Gold Co. supra, and said: “There can be no recovery for attorney’s fees unless the plaintiff succeeds in his foreclosure proceeding. The court below having found against him on the merits, the lien, which is the basis upon which the right to recover the attorney’s fees must rest, is gone, and the right to such attorneys’ fees must go with it.” The appellants do not attack the reasonableness of the sum of $1,000 which was taxed in favor of respondent as an attorney’s fee, but insist that this act is within the prohibition of the Constitution, because it punishes the owner of property who resists in good faith the payment of an unjust or illegal claim. It is shown in the case at bar that the respondent brought this action to recover the sum of $14,198.50; that the verdict was for the sum of $9,ll3.50; and that judgment was entered accordingly. The jury arrived at this result by deducting from the demand of respondent the sum of $5,085, which was paid by Kleinschmidt after the commencement of the action.
Kleinschmidt, by his pleadings and testimony, asserted that Wortman was not entitled to recover any amount, and that if judgment were entered against him the law would not authorize [333]*333the creation of a lien upon his property to secure its payment. If Kleinschmidt had tendered to the respondent, at the appropriate time, the sum which was due, or had confessed judgment in favor of Wortman for the foreclosure of his lien, the court would not have the power, under the statute, to tax the attorney’s fee because the relief sought had been obtained without a , contest. If the defendant offers at any stage of actions of this class to allow a proper judgment to be taken against him, the court would consider this fact in fixing the amount of such fee. The court found against Kleinschmidt upon these issues, and we are of opinion that the legislative assembly had the power to declare that, under these circumstances, a reasonable attorney’s fee should be taxed as costs.
The court below was correct in its rulings upon the other questions which have been discussed. The respondent performed the conditions of the contract which devolved upon him; the certificate of the architects was unreasonably withheld • and the delay in the construction of the building and the annex was not caused through the fault of the builder. The respondent is entitled to a lien upon this property under the statutes to secure the payment of the sum which is due from Kleinschmidt.
It is therefore ordered and adjudged that the judgment be reduced from the sum of $9,113.50 to the sum of $8,422.10, and that, when so modified, the same be affirmed.
Affirmed.
Harwood, J., concurs.