Bailey & Koerner or Walling & Co. were indebted to Clark, the chancellor dismissed the petition on demurrer, holding that while the statute as amended by the act of March 21, 1896 (Ky. St. § 2463), in terms gave Hightower the lien, the statute as so amended is unconstitutional; and this is the first question considered. The statute is as follows:

"A person who performs labor or furnishes materials in the erection, altering or repairing a house, building or other structure or for any fixture or machinery therein, or for the excavation of cellars, cisterns, vaults, wells or the improvement, in any manner of real estate by contract with, or by the written consent of, the owner, contractor, subcontractor, architect or authorized agent, shall have a lien thereon, and upon the land upon which said improvement shall have been made or on any interest such owner has in the same, to secure the amount thereof with costs; and said lien on the land or improvements shall be superior to any mortgage or incumbrance created subsequent to the beginning of the labor of furnishing of the materials; and said lien if asserted as hereinafter provided, shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials provided, that such lien shall not take precedence of a mortgage or other contract lien or bona fide conveyance for value without notice, duly recorded or lodged for record according to law, unless the person claiming such prior lien shall before the recording of such mortgage or other contract lien or conveyance, have filed in the clerk's office of the county court of the county wherein he shall have performed labor or furnished material, or shall expect to perform labor or furnish materials as aforesaid, a statement showing that he has performed or furnished, or that he expects to perform or furnish, such labor or materials, and the amount in full thereof, and his lien shall not, as against the holder of said mortgage or other contract lien or conveyance, exceed the amount of the lien claimed, or expected to be claimed, as set forth in such statement. * The liens provided for herein shall in no case be for a greater amount in the aggregate than the contract price of the original contractor; and should the aggregate amount of liens exceed the price agreed upon between the original contractor and the owner, then there shall be a pro rata distribution of the original contract price among said lien holders."

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This statute is radically different from our former laws on this subject, and has not heretofore been before this court for construction. The preceding statute, while giving liens to contractors, subcontractors, materialmen, and laborers, practically thereby provided a process of garnishment in the hands of the owner of any money he might owe the contractor. Its purpose was merely to substitute the subcontractor, materialman, and laborer to the rights of the contractor, and was effectual only in the event the owner was indebted to the contractor. It was entirely safe for the owner, without notice of the claims of others, to pay his contractor when he pleased-even in advance. The present statute was clearly meant to fasten, and does fasten, on the property of the owner a lien for the claim of the subcontractor, materialman, and laborer, although the owner has no notice of such claims, and may owe the contractor nothing. When applied to the facts of this case, assuming that Hightower is a materialman, and Clark a subcontractor, within the meaning of the statute, the law gives to Hightower a lien on the lot and improvement of Walling & Co., without regard to the state of account between the owners and the contractors or the contractors and Clark.

This is, in effect, argue counsel, the taking of Walling & Co.'s property to pay the debt of another, and gives them no day in court, and is, moreover, an unwarrantable interference with the right of Walling & Co. to make such contract as they pleased with Bailey & Koerner, and discharge their obligations when and as they pleased. This contention is not without authority to support it. The Ohio courts seem to so hold, and perhaps, also, the courts of Michigan. But the weight of authority seems the other way. In Laird v. Moonan, 32 Minn. 358, 20 N. W. 354, the constitutionality of an act from which our act seemingly is copied is elaborately discussed, and the act upheld. In Wisconsin the same conclusion was reached. Mallory v. Abattoir Co., 80 Wis. 170, 49 N. W. 1071. So, in Massachusetts, in Donahy v. Clapp, 12 Cush. 440; Bowen v. Phinney, 162 Mass. 593, 39 N. E. 283.

In Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S. W. 1045, the court said: "It is true that a lien is provided for persons with whom the owner is supposed to have no direct contractual relations, but the fact alone does not invalidate the act; for the owner must be held to a knowledge of the existing law on the subject, and to the presumption that he employed the original contractor and gave out his work with. reference to that law. The right of lien to subcontractors and material men is, by operation of law, incorporated into and made a part of the owner's contract, as much as if expressly included and written therein. He contracts about a subject in which the law declares certain advantages to all persons concerned, whether by direct contract with him, or by the employment of his contractor. The law declares that a lien shall exist in favor of the subcontractor and materialman in certain contingencies. Hence the owner who makes the contemplated contract cannot justly complain of the legal result, especially when he derives the benefit of the labor and materials of those for whom the lien is provided, and who often have no other means of compensation. The enforcement of this law does not necessarily result in loss to the owner, nor take from him something for nothing." In Colter v. Frese, 45 Ind. 96, the same conclusion was reached after an exhaustive examination.

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In Phil. Mech. Liens (3d Ed.) § 57, the author thus states the doctrine: "The lien of the mechanic being a remedy by which the property of one man may be taken for the benefit of another, it necessarily follows that it can only arise by the free consent of him to whom it belongs. It is, however, no more necessary that the contract from which the lien is to follow as an incident should be the personal act of the owner, than in other matters. Necessity has created, and the law sanctioned, the performance of the affairs of life by means of agents duly authorized by principals. * * This agency may be implied as well as expressly created. Every man must necessarily be presumed to know the public laws in existence, and to contract with reference to their provisions. Whenever, therefore, from public policy, it is found necessary to extend by statute a lien against the property of an owner, to answer to a subcontractor or others with whom he is not in privity, and the owner shall thereafter make such contract, from which the statute declares the lien to subcontractors and others shall flow, the original contract of the owner will be conclusively presumed to imply the consent that his property may be taken to pay indebtedness to subcontractors thus imposed by the law. On this ground contractors have been allowed to pledge the credit of property to subcontractors and materialmen."

An admirable statement of the grounds on which such statutes rest is found in Albright v. Smith (S. Ď.) 51 N. W. 590.

We regard the authorities cited (and there are many other cases in point) as entirely sufficient to uphold the constitutionality of the statute. Notwithstanding this, we think the chancellor acted properly in dismissing the petition. While the case seems to have been heard below on the theory that Clark was a subcontractor, and Hightower a materialman, within the meaning of the statute, the pleadings do not sustain such theory. Hightower is a lumberman, and furnished materials, it is true, but he furnished them to Clark, another materialman. The petition avers that he furnished the lumber to Clark at his special instance and request, and for which he agreed to pay the purchase price, and he so furnished it to Clark for the purpose of being used, and it was used, in building for Walling & Co. a certain elevator. He further avers that he filed his statement in the clerk's office, as required by law, showing that he claimed a lien for the materials furnished Clark as subcontractor. But the averments of the pleading do not show that Clark was a subcontractor, but do show that he was merely a materialman, under contract with the contractors, Bailey & Koerner, to furnish certain lumber for the elevator. Clark and Hightower were both materialmen, but the statute does not give a lien to a materialman who furnishes materials to another materialman.

The materials for which the statute gives a lien are those which are furnished to an owner, a contractor, subcontractor, architect, or authorized agent. We cannot extend the statute beyond its plain language and evident meaning. The hardships to owners are apt to be considerable, even under the terms of the statute. If the right to the lien be extended beyond the terms, then it can be extended indefinitely, and there would be no safety in contracting for the erection of a building. The statute so extended would be impracticable. In Phil. Mech. Liens (3d Ed.) § 51, it is said "that a lumber dealer, employed merely to furnish lumber, whether manufactured or not, is not a contractor for the erection of the building, or any division of it. He is a materialman, merely, or a workman, if he works up his lumber into frames, doors, etc., and is not employed to erect or put up the building, or any of its primary divisions." In Merriman v. Jones, 43 Minn. 29, 44 N. W. 526, it was held that one who sells materials to the dealer who has contracted to supply the contractor is not a subcontractor, within the meaning of the Minnesota statute, and has no lien. This statute, we have seen, apparently furnished the model for the Kentucky statute.

A strict application of this rule should be made in this case, because it appears from the plaintiff's pleadings that when he shipped the first lumber to Clark, he did not know for what particular purpose or for whose building the lumber was intended, and he could not, therefore, have sold it on the credit of the building of Walling & Co., to be erected, but trusted alone in Clark's credit. It was a simple and ordinary sale of lumber by one lumber merchant to another like merchant, and apparently on the sole credit of the purchasing merchant.

Wherefore the judgment denying the lien is affirmed.

AMERICAN RADIATOR CO. v. BLAKIE et al.

(Appellate Court of Illinois, 1911. 165 Ill. App. 404.)

SHIRLEY, P. J. The decree in this case declared a lien in favor of the appellee for the sum of $146.63. Appellants about July 1, 1910, entered into a contract with the firm of Struby & Harris to place in their dwelling on real estate owned by them a heating plant to cost $414. After this contract was made Struby & Harris ordered and received from appellee one boiler and nine radiators and placed them in the dwelling as part of the plant. The contract price was $74.30 for the boiler and $72.33 for the radiators, a total of $146.63. The boiler was shipped from Buffalo, N. Y., on September 8th and the radiators from Litchfield, Ill., September 7, 1910. The boiler was shipped cash and the radiators on thirty days' time. On October 10th following, appellee served a subcontractor's notice on the appellants that it had been employed by Struby & Harris to furnish material consisting of boiler and radiators under a contract between said firm and appellants on appellants' property (describing it), and that there was due therefor the sum of $146.63, and that the appellee would hold the premises liable for the amount.

It appears from the testimony of appellant Charles Blakie that before the boiler and radiators were delivered Struby represented to Blakie that he had the material with bill of lading attached and could not get it until he paid for it, whereupon Blakie paid him $300 on the contract with which to pay the draft; that Blakie did not know of the change in the terms of the sale of the boiler by appellee from cash to thirty days' credit and he further testified that Struby & Harris did not complete the job. Struby & Harris paid nothing on the material.

It further appears that appellant Blakie made the payment of $300 without requiring a sworn statement from Struby & Harris as proIvided in section 5 of the Mechanic's Lien Law. * * *

It is further contended the transaction being a cash sale under the original contract between the contractors, Struby & Harris, and appellee, the lien law did not apply. Notwithstanding the boiler was shipped cash and the terms afterwards changed, at the time the notice was given Struby & Harris were indebted to appellee for both boiler and radiators, and appellee was entitled to a lien against the property for the material to the extent that the owner was indebted to the contractors and also to the extent that the owner had paid the contractors in violation of section 5 of the lien law. That section provides:

"That it shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor *** before the owner shall pay * * * to said contractor or to his order any money or other consideration due or to become due such contractor, or make or cause to be made to such contractor any advancement of any moneys or any other consideration, a statement in writing under oath or verified by affidavit of the names of all parties furnishing materials and labor and of the amount due or to become due each. * **"

Section 32 provides:

"No payment to the contractor or to his order of any money or other consideration due or to become due the contractor, shall be regarded as rightfully made as against the subcontractor, laborer or party fur

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nishing labor and materials if made by the owner without exercising. and enforcing the rights and powers conferred in section 5 of this act."

Appellant not having required of the contractors, Struby & Harris, the affidavit provided for in section 5, supra, but having paid them $300 without such affidavit, the sum of the payment was not rightfully made under sections 5 and 32, and did not relieve appellants' property from a lien in favor of appellee for the payment of its claim of $146.63, for the material which had been furnished at that time. Appellants could have protected both appellee and themselves by requiring of Struby & Harris the affidavit provided for in section 5.

Finding no error in the decree, it will be affirmed.

SECTION 4.-WHAT AND WHEN ARE MATERIALS FURNISHED

R. HAAS ELECTRIC & MFG. CO. et al. v. SPRINGFIELD AMUSEMENT PARK CO. et al.

(Supreme Court of Illinois, 1908. 236 III. 452, 86 N. E. 248, 23 L. R. A. [N. S.] 620, 127 Am. St. Rep. 297.)

Suit by the R. Haas Electric & Manufacturing Company against the Springfield Amusement Park Company. From a judgment of the Appellate Court, modifying and affirming the decree, the complainant and others appeal.

This is a bill in chancery filed by the R. Haas Electric & Manufacturing Company (which will hereinafter be designated as the electric company) against the Springfield Amusement Park Company (which for convenience is hereinafter called the park company), the Peter Vredenburgh Lumber Company (hereinafter called the lumber company), Thomas D. Hogan, F. Reisch & Bros., and certain other parties, defendants, to enforce a mechanic's lien.

It appears from the bill that on the 2d day of March, 1906, the electric company entered into a contract with the park company by which the electric company contracted to furnish all labor and material for electric wiring, motors, accessories, plumbing, piping, etc., to be used in the Springfield Amusement Park Company's White City Park of Springfield, Ill., to be located at the east end of Capitol avenue, now known as Reisch's Park; that said materials and labor were to be furnished at the regular retail prices; that in consideration of this contract the electric company agreed to subscribe for $1,000 of the capital stock of the park company, to be paid for in material and labor, provided that such subscription did not exceed 40 per cent. of the total amount of the materials and labor furnished by the electric company. The bill avers that in pursuance of such contract the electric company furnished all labor and materials for electric wiring, motors, accessories, plumbing, piping, etc., used in the said park company's White City Park, and complied in all respects with the said contract, and that such material and work had been accepted and used by the park company.

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