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McMURRAY ET AL. v. BROWN.

October 1, 1875

MCMURRAY ET AL.
v.
BROWN.



APPEAL from the Supreme Court of the District of Columbia. This was an action to enforce a mechanics' lien under sect. 1 of the act of Congress approved Feb. 2, 1859, 11 Stat. 376, which provides, 'That any person who shall hereafter, by virtue of any contract with the owner of any building, or with the agent of such owner, perform any labor upon, or furnish any materials, engine, or machinery for the construction or repairing of, such building, shall, upon filing the notice prescribed in sect. 2 of this act, have a lien upon such building and the lot of ground upon which the same is situated for such labor done, or materials, engine, or machine furnished, when the amount shall exceed twenty dollars.' The second section provides, 'That any person wishing to avail himself of this act, whether his claim be due or not, shall file in the office of the clerk of the Circuit Court of the District of Columbia at any time after the commencement of the said building, and within three months after the completion of such building or repairs, a notice of his intention to hold a lien upon the property declared by this act liable to such lien for the amount due or to become due to him, specifically setting forth the amount claimed. Upon his failure to do so, the lien shall be lost.' Mrs. McMurray, one of the defendants, was indebted to the complainant in the sum of $1,230.62 for materials furnished by him in the construction of two dwelling-houses on lots belonging to her in the city of Washington, under an agreement, that, upon the delivery of said materials, she would, in payment therefor, convey to him, at the rate of forty-five cents per square foot, certain real estate situate in said city. She subsequently refused to comply with the agreement, but promised to pay him the amount of his bill in cash. No payment having been made, he, on the 13th of February, 1872, the houses then being uncompleted, gave the required notice of his intention to hold the property subject to his lien. The court below rendered a decree in favor of the complainant; from which an appeal was taken to this court.

The opinion of the court was delivered by: Mr. Justice Clifford delivered the opinion of the court.

Mr. James S. Edwards for the appellants.

It is insisted as matter of law, that the complainant, upon his own showing, is not entitled to relief. 'Where there is a special contract between a mechanic and the owner or builder of a house for the work which the former is to do in constructing the house, he must look to his contract alone for his security, and cannot resort to the remedy which the mechanics' lien law provides.' Haley v. Prosser, 8 W. & S. 133; Grant v. Strong, 18 Wall. 623.

The complainant must have been entitled to file his lien when the contract was made. He can do nothing afterwards to alter his position. Hoatz v. Patterson, 5 W. & S. 537.

He clearly had no right to file his lien when the alleged agreement was made; for, by its terms, Mrs. McMurray was to convey a certain lot in exchange for the material furnished. His action for a breach of the contract is by a different proceeding. He has a remedy at law; no standing here.

Mr. Edwin L. Stanton for the appellee.

It is submitted that the facts show a contract within the statute; but the appellant insists 'that the complainant, upon his own showing, is not entitled to the relief he seeks, for the contract upon which he relies is a special one.' In support of this proposition, he cites the cases of Haley v. Prosser, 8 W. & S. 133; Hoatz v. Patterson, 5 id. 537; Grant v. Strong, 18 Wall. 623.

The two former decisions 'were a surprise to the profession, acted almost as a nullification of the law, and were followed by an act of the legislature extending the lien to all cases of contracts.' Phill. on Mech. Liens, 166, citing Lay v. Millette, 1 Phila. 513; Russell v. Bell, 44 Penn. 47.

Grant v. Strong in no manner supports the proposition, that, when a special contract has been made, the material-men or laborers have no lien.

The complainant, having no other security, was not deprived of his lien by reason of agreeing to accept land instead of money for his materials. There is no distinction in principle between an agreement to pay money or property which can possibly affect the remedy provided. Phill. on Mech. Liens, 182; Campbell & Kennedy v. Scaife et al., 1 Phila. 187; Haviland v. Pratt, id. 364; Hinchman v. Lybrand, 14 S. & R. 32; Reiley v. Ward, 4 Iowa, 21.

Mechanics or other persons, who, by virtue of any contract with the owner of any building, or with the agent of such owner, have, since the 2d of February, 1859, performed labor, exceeding the value of twenty dollars, upon such building, or have furnished materials, engine, or machinery exceeding that value, for the construction or repairing of such building, shall, upon filing the notice prescribed in the second section of the Lien Act of that date, have a lien upon such building, and the lot of ground upon which the same is situated, for such labor done, or materials, engine, or machinery furnished. 11 Stat. 376.

Building materials of great value, such as bricks and lumber, were furnished by the complainant to the first-named respondent, by virtue of a verbal agreement, as he alleges, between him and the husband of the respondent, acting as her agent.

Service was made, and the respondent appeared, and by her answer admitted the averments of the first, second, fourth, and seventh paragraphs of the bill of complaint, but denied every other material allegation which it contains.

Proofs were taken; and, the parties having been fully heard, the judge, at special term, entered a decree that the complainant recover of the respondent the sum of twelve hundred and thirty dollars and sixty-two cents, with interest, as therein provided; and that the described real estate,–to wit, lots numbered thirty-six and thirty-seven,–together with the buildings and ...


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