defendant sought to enforce a lien against the real property of the Ontario Mining Company for the price of sundry materials furnished to it between the 1st day of January, 1896, and the 16th day of June, 1896; the claim of lien having been filed on the 31st day of July, 1896. The supposed rights of the Continental Oil Company were contested by the Merchants' National Bank and one Hershfield, claiming interests in the property of the mining company by virtue of attachments and executions against it.

Upon trial the Continental Oil Company obtained a judgment against the mining company for the amount of its claim of $267.67, with interest, but only $22.68 of that amount, with interest from August 1, 1896, and attorney's fees, was decreed to be a lien upon the real estate of the debtor. The court found that each month's sales were separate and independent accounts, and that the appellant was not entitled to a lien for the value of any materials not furnished within 90 days next before the time when the statement of lien was filed, and that none of the articles are of a lienable nature, except the gasoline for fuel in the assay office in connection with the mill and concentrator. Some of the gasoline had been furnished more than 90 days before the statement of lien was filed. The appeal is from the order denying a new trial, and from so much of the judgment as fails to allow a lien for the whole

account.

We find it unnecessary to determine whether or not the account in suit is made up of a series of independent contracts, or whether or not the purchases during each month constitute separate and independent accounts. The articles furnished for which a lien is claimed consist of coal oil for illuminating purposes, mica grease and oil for lubricating purposes, and gasoline used for fuel. We are satisfied that no one of these is of a lienable nature. Each is consumed in use; neither adding to the value, nor becoming parcel, of the property upon which it is used. Section 2130 of the Code of Civil Procedure does not, by any fair construction, include the materials for which a lien is sought to be enforced in the case at bar. The statute creating the right of the material man to acquire a lien is the outgrowth of the principle that he who furnishes that which becomes a constituent part of real property, and is intended to enhance its value, should be given security for the price or worth thereof.

The doctrine is well stated by Mr. Justice Brewer in Central Trust Co. v. Texas & St. L. Ry. Co. (C. C.) 23 Fed. 703: "The language of the statute contains the word 'fuel,' in addition to the words 'labor and material'; and it is claimed that the use of the word 'fuel' enlarges the meaning of the word 'material,' and makes it broad enough to cover all supplies furnished. But for that word 'fuel,' there would be no question. The idea which underlies these lien statutes is that because the labor and the material have gone into the building of the road or structure, and to that extent added to its value, therefore a lien for such labor and material should be given to him who does the one and furnishes the other. While we may be compelled to follow the language of the statute, and give for the fuel furnished a lien, yet I think in the construction of these statutes we should start from the underlying thought of giving security to him who adds to the value of the road, and that we should never carry the statute beyond that, unless imperatively demanded by the language used."

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The Wisconsin statute provides that every person who furnishes any materials in or about the erection, construction, protection, or removal of any machinery which is or becomes a part of the freehold, shall have a lien for such materials. In Oil Co. v. Lane, 75 Wis. 636, 44 N. W. 644, 7 L. R. A. 191, the court said: "The statute seems to go on the principle that materials used and labor performed on machinery, which enhance its value and become a part of such machinery, should be entitled to a lien. This appears to be the object of the statute. It is clear that it is not everything used in operating machinery, and which tends to preserve it, that is embraced within the meaning of the statute. Many things may serve to preserve machinery and make it operate more efficiently and easily, which do not protect it in the sense. of the statute."

We affirm the doctrine announced in these cases, as based upon correct principle. The judgment and order appealed from are affirmed. Affirmed.

BRANTLY, C. J., being disqualified, takes no part in this decision.

SECTION 5.-EFFECT OF A CONTRACT AGAINST A LIEN

CAMERON-SCHROTH-CAMERON CO. v. GESEKE.

(Supreme Court of Illinois, 1911. 251 Ill. 402, 96 N. E. 222.)

Cameron Company, plaintiff in error, brought its action in the municipal court of Chicago, against Geseke & Doud, a partnership, and against the Chicago Telephone Company, to recover from Geseke & Doud for materials furnished them, and for a lien upon the premises of the Chicago Telephone Company upon which the materials were used. Geseke & Doud had entered into a written contract with the Telephone Company that "the completed work called for by this contract, when offered to the owner for acceptance shall be free from any and all liens, claims or encumbrances, of any description whatever." The following section of the mechanics' lien law was involved: "Every mechanic, workman or other person who shall furnish any materials, apparatus, machinery or fixtures, or furnish or perform services or labor for the contractor shall be known under this act as a subcontractor, and shall have a lien for the value thereof, with interest on such amount from the date same is due, from the same time, on the same property as provided for the contractor, and also, as against the creditors and assignees, and personal and legal representatives of the contractor, on the material, fixtures, apparatus or machinery furnished, and on the moneys and other considerations due or to become due from such owner under the original contract, whether or not the original contractor could have obtained a lien or was by contract or conduct divested or deprived of a right to obtain a lien."

It is contended by the plaintiff in error that by the language of this section a subcontractor is given a lien notwithstanding the original contractor may by his contract with the owner expressly provide, as was done in this case, that the completed work, when offered to the owner for acceptance, should be delivered free from any and all liens, either

of the contractor or subcontractor, and that the statute so construed, is a valid enactment.

PER CURIAM. The constitutionality of section 21 of the mechanic's lien law of 1903, as applied to a subcontractor, where the original contract waives the lien created by the statute or the lien has been released by the original contractor before the lien of the subcontractor has attached was fully considered in the case of Kelly v. Johnson, 251 Ill. 135, 95 N. E. 1068, 36 Am. St. Rep. 573, and it was there held that a subcontractor's lien can only exist by virtue of the original contract, and in case the original contract provides there shall be no lien on the improved property for material or labor furnished by the original contractor, or the lien has been subsequently released by the original contractor before the lien of the subcontractor has attached, such contract or release was binding upon the subcontractor and that as said section of the statute was framed with the view to give a subcontractor a lien which would not be dependent upon the original contract, it was to that extent unconstitutional and void. That case is conclusive of the case at bar.

The judgment of the municipal court will therefore be affirmed.

SECTION 1.-INTRODUCTION

One method, often adopted by the business man of to-day, used in securing payment for articles sold, is to retain title of the article sold until such time as it is paid for. Technically, a conditional sale is one which becomes effective only upon the happening of a certain event. In business practice, the only important one is that one where title is retained to secure payment of the purchase price; i. e., X. sells to Y. a piano, to be paid for in installments, specifying that title shall remain in the seller until all of the installments are paid. What is the relationship between X. and Y.? Who will lose if the property is destroyed? If the article is taken, because not paid for, what right does the seller have against the buyer for any unpaid balance? These and other questions will be answered in the cases that follow.

VERMONT MARBLE CO. v. BROW, Constable.

(Supreme Court of California, 1895. 109 Cal. 236, 41 P. 1031, 50 Am. St. Rep. 37.)

BRITT, C. Defendant was constable of Marysville township, in Yuba county, and was sued in this action by plaintiff, a corporation, for the value of certain marble monuments sold by him July 10, 1893, under writs of execution issued from the justice's court of said township against the property of one Plymire, upon judgments obtained there by creditors of Plymire. The chief question involved is whether the marble when levied upon and sold was the property of plaintiff.or of said Plymire. The latter had a marble shop at Marysville, and was a dealer in funeral stones and monuments. He had been accustomed for several years to purchase from plaintiff unfinished monuments and other marble needed in his business, and on July 19, 1892, he was in plaintiff's debt some $2,500 for such materials purchased previously to that time, and plaintiff was apprehensive that further sales to him outright would involve loss. To prevent this, Plymire agreed in writing with the marble company, on the date last mentioned, that, in consideration of its sending to him certain specified monuments "on consignment," he would hold the same as the property of the company until sold, and subject to its order; that, as fast as he sold the monuments, he would remit the money (the cost price at which each was listed to him); and,

when he took notes in lieu of cash, he would remit the notes as collateral for his account.

Subsequently, in May, 1893, Plymire agreed with plaintiff for a further consignment of goods, specifically described, written memoranda of which agreement provided in substance that he should keep an account of the sale of the monuments described in a book, and send such book to the marble company on the 1st of each month, and, "as fast as said work is sold and erected," pay to the company the list or cost price to him of each piece of marble sold by him, "either by cash or customer's note," the same to be placed to his credit as fast as cash should be received; that he held the marble merely on consignment, to be paid for when sold; and that it remained the property of the marble company "until paid for, as above," and at all times subject to its order. Ten monuments, of the value of $683, were converted by defendant, as the court found; and of these three had been delivered to Plymire under his arrangement with plaintiff of July, 1892, and seven under that of May, 1893. By the terms of an oral agreement, not embodied in said written memoranda, Plymire promised that, whenever he received payment from a customer for a monument, he would pay plaintiff an additional sum of 25 per cent. on the cost price charged him for the same by plaintiff, which further percentage was to be applied on his indebtedness of $2,500 existing before July, 1892.

The debts on which the judgments mentioned were recovered against Plymire accrued prior to the receipt by him of any part of the goods in controversy. Plymire, it was further understood, would take orders for and sell the marble in his own name. He had the right to fix the selling price and the terms of sale. He was to bear the cost of transporting the marble from San Francisco to Marysville. Apparently the marble company exercised no control over his business. The monuments, when seized by defendant, were in the same condition as when received by Plymire from plaintiff, he having done no lettering or other work on them. Plymire testified at the trial: "I was not to sell these monuments in the same condition that I received them. * * * I have to sell them first, and then put on the inscription. * * If a man wanted a design, I showed him a style of monument, and told him what it would come to when finished and set up; found out how he wanted it lettered, whether he wished any further design carved on it, and then fixed it up, put a bottom base on it, set it up, and then took the money for it." Before the execution sale, plaintiff demanded the property of defendant, the particulars of which demand appear in another connection.

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Appellant contends that the facts stated evidence a sale on credit, in which the title to the goods passed at once to Plymire, and they thus became liable to execution for his debts; and it is said that it is "unmeaning for parties to a contract to say it shall not amount to a sale when it contains every element of a sale." This latter proposition is doubtless correct. The transaction must be judged by the intent of the parties to it, gathered from the whole scope and effect of their language and their explanatory conduct. Mere verbal formulas are to be disregarded if inconsistent with a specific intent thus manifested. But, looking at the facts in the light of this principle, we find no transmission of title to Plymire. "Mere transfer of possession, without the agreement, express or implied, that such transfer is a sale, on the