Dennistoun v. McAllister

By the Court.

This action is brought under the mechanics’ lien law, for excavating cellars. The defendant, McAllister, was the contractor, with the defendant, Taylor. Taylor does not appeal. The appeal is brought by McAllister, the contractor.

The evidence clearly establishes that the contract was never performed by the plaintiff, but that the completion of it was either the result of the defendant’s orders or of the refusal of the plaintiff to complete the work without a further advance in the amount to be paid. For the purposes of this appeal, it is immaterial which result is arrived at from the testimony.

By the first section of the act, (September, 1851, p. 953,) the remedy under that act is confined to the party who, in pursuance of an agreement with the contractor, shall, in conformity with the terms of the contract with the owner, perform any labor or furnish- any materials; and by the fourth section, the right to enforce such lien is limited to a period after the labor has been performed, in pursuance of the contract.

To entitle the plaintiff to recover, it is therefore necessary for him to prove a contract between the contractor and the owner, and the performance of labor under an agreement with the contractor, in pursuance of the contract with the owner. (Pendleburg v. Meade, 1 E. D. Smith, 728; Gardin v. Thorp, id. 697.) No such evidence was furnished in this case; but as the appellant confined himself on the trial to the defence, that the plaintiff had not performed his agreement with the contractor, he must be confined to that objection on the appeal, and the existence of a contract between the appellant and the owner must be presumed.

The whole of the evidence on this point shows that the *733agreement was not performed. The plaintiff himself proved that the reason why it was not performed was, that the contractor prevented it. For this he had a right of action against the contractor, but under the lien law he obtained no lien on the owner’s interest. That statute gives no remedy for damages for not performing a contract. Where the work has been performed, it then gives to the person doing the work the right to collect the moneys due from the owner, if indebted to the contractor. The whole theory of the statute is based on the supposition that the owner has received, through the contractor, the benefit of labor performed by the laborer, and, therefore, should pay for such labor any moneys in his hands belonging to the contractor. Until the work is performed, a right to a lien on the premises does not accrue. The justice found that the plaintiff was prevented from finishing the contract by the act of the defendant, and was, therefore, entitled to the balance due. Whether such a finding could be sustained in an ordinary action on the contract, it is not necessary now to inquire.

I have no doubt, however, that it is insufficient to sustain this judgment for the reasons above stated. For the amount of work done under the contract, where the other party prevents its completion, a lien may be acquired; but such lien cannot be extended to damages for the breach of the contract not performed.

The judgment rendered was defective. The first section of the act (September, 1855, page 760) directs that whenever a judgment shall be rendered in favor of the claimant, such judgment shall direct the sale of the interest of the owner ; and the fifth section provides, that when proceedings are commenced by a person having a claim against a contractor with the owner, judgment may be rendered against the contractor for the amount of his indebtedness, in addition to the judgment provided for in the first section against the owner.

The judgment against the contracter is a personal judgment for the amount he owes the laborer, and the judgment against the owner merely directs the sale of his interests *734in the premises to pay the amount found due from him to the contractor to the extent of the plaintiff’s claim.

Where the owner is the contractor, a liberal construction of these provisions will allow a personal judgment against him for the amount of the indebtedness that may remain after the sale of his interests in the premises.

I think the judgment in this case must he reversed.

Judgment reversed.