question of its constitutionality was promptly raised. Although, due to special provisions therein, the statutes were, in many instances, declared unconstitutional, yet, in their broad underlying principle and application, their constitutionality has been repeatedly, and substantially without exception, recognized and upheld.20

§ 77. Lien a Statutory Remedy.-Stating, perhaps, in another way the fact that mechanics liens. were unknown under the doctrines of the common law, it has been repeatedly held that they are absolute creatures of statute and are to be so considered in determining their interpretation and application.21 As a corollary to the foregoing rule, it necessarily follows that a substantial observance of all statutory requirements and provisions is essential and a condition precedent to the validity and enforcement of the lien, and that

20 Brooks v. Railway Co., 101 U. S. 443; Davis v. Alvord, 94 U. S. 545; Glacius v. Black, 67 N. Y. 563; Newark Lime, etc., Co. v. Morrison, 13 N. J. Eq. 133; Blauvelt v. Woodworth, 31 N. Y. 285; Schillinger Fireproof Cement, etc., Co. v. Arnott, 86 Hun. N. Y. 182; affirmed 152 N. Y. 584; White v. Miller, 18 Pa. St. 52; Whittier v. Wilbur, 48 Cal. 175; Booth v. Pendala, 88 Cal. 36; Laird v. Moonan, 32 Minn. 358; McKeon v. Sumner Building, etc., Co., 51 La. Ann. 1961; Prince v. Neal Millard Co.,

124 Ga. 892; First Natl. Bank, etc., v. Trigg Co., 106 Va. 327.

21 Van Stone v. Stillwell, etc., Manfg. Co., 142 U. S. 128; Withrow L. Co. v. Glasgow, etc., Co., IOI Fed. 863; Birmingham I. F. Co. v. Glen Cove Starch Manfg. Co., 78 N. Y. 30; Frost v. Ilsley, 54 Me. 345; Wolf v. Pa. R. Co., 29 Pa. Superior Court 439; United States Blowpipe Co. v. Spencer, 40 W. Va. 698; Joplin Supply Co. v. West, 149 Mo. App. 78; Dufresne v. Préfontaine, 21 Can. Sup. Ct. 607.

the notice of lien must itself comply with the terms of the statute in all substantial particulars.22

878. No Personal Liability.-The mechanic's lien being fundamentally and essentially a claim against realty, it follows naturally that no personal liability is created thereunder, whether as against the owner or as against anyone who, in the absence of statutory provision, would be under no personal liability to the lienor.23

The fact already noted, that in every case, in determining lien rights, reference must be made to the particular statute involved, must not be lost sight of, however, and no statutory lien can be acquired in any event by one who cannot properly be classified as coming within the provisions of the special statute under which he claims. For instance, under a statute which gives a lien to masons and to carpenters, a plasterer may not be allowed to come in as a lienor.24

§ 79. Necessity of Contract.-It should be noted here that as to all mechanics' liens it is a general rule that a contract, direct or indirect, to which the owner of the property is a party, covering the work in connection with which the labor or

22 Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. St. 581, 67 Atlantic 872; Wharton et al. v. Real Estate Inv. Co. et al., 180 Pa. St. 168, 36 Atlantic 725; Knelly v. Horwath, 208 Pa. St. 487, 57 Atlantic 957.

28 Crystal v. Flannelly, 2 E. D. Smith (N. Y.) 583; Cox. v. Broderick, 4 E. D. Smith (N. Y.) 721; Delafield v. Sayre, 31 Vroom (N. J.) 449; Garrison v. Borio, 61 N. J. Eq. 236; Bonncy v. Ketcham, 51 Ill. App. 321.

24 Fox v. Rucker, 30 Ga. 525.

material for which the lien is claimed is performed or furnished, is a condition precedent to the attaching of the lien.25

In addition to the prices specified by the contract the lien includes the value of extra work done or materials furnished.26 In New York and other States this doctrine has been restricted to the cases where the extras are furnished pursuant to an agreement between the owner and contractor, and in accordance with the terms of the contract, in the absence of a waiver thereof.27. But in Massachusetts in a decision by Mr. Justice Holmes, before the latter's appointment to the Federal Supreme Court, the Court recognized an implied authority in the contractor to sublet portions of the work, and sustained the right of his subcontractor to a lien for extra work.28

It may be stated as a general rule that while the necessity of a contract direct or indirect is clear as has been noted, this contract need not, unless the statute expressly require it, be in writing to be

25 Cornell v. Barney, 94 N. Y. 394; Knapp v. Brown, 45 N. Y. 207; Muldoon v. Pitt, 54 N. Y. 269; Entenman v. Anderson, 106 N. Y. A. D. 149; Meyers v. Daly, 7 Daly (N. Y.) 471; Belding v. Cushing, I Gray (Mass.) 576; Simpson v. Dalrymple, II Cushing (Mass.) 308; Herell v. Donovan, 7 App. Cases (D. C.) 322; General Supply Co. v. Hunn, 126 Ga. 615; Wendt v. Martin, 89 Ill. 139; Coburn v. Stephens, 137

effective to support a lien.29 While in some States, an implied contract was formerly not considered sufficient to support a lien,30 yet in other jurisdictions, including New York, the lien has been regularly sustained notwithstanding the fact that the contract has been by implication merely.31

29 Mornan V. Carroll, 35 Iowa 22; Montandon v. Deas, 14 Ala. 33.

30 Rowley v. James, 31 Ill. 298, but see amendment to laws, same case, note; Parker v. Anthony, 4 Gray (Mass.) 289; but see contra dicta in

Manchester v. Searle, 121 Mass. 418.

31 Muldoon v. Pitt, 54 N. Y. 269; Hazard, etc., Co. V. Loomis, 2 Disney (Ohio) 544; Vail v. Meyer, 71 Ind. 159; Carney Bros. v. Cook, 80 Iowa

747.

CHAPTER II

THE LIEN OF THE ARCHITECT

§ 80. Development of Doctrine.-Enough has been said of the history of lien legislation to make clear why it was that under the early statutes, and the early conception of the purposes and effect of lien legislation, an architect could not avail himself of the advantages of a mechanic's lien. Under the modern extension of the lien doctrine, however, an architect has, quite properly and very generally, been considered as coming within the limitations and qualifications laid down by the various State statutes, although there is found a natural and considerable divergence of opinion in the laws of the different States as to the extent of the lien to which he is entitled, and the character of the work required to qualify him as a proper lienor. In New York the statute provides that

"A contractor, subcontractor, laborer or material man who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, shall have a lien for the principal and interest of the value or the agreed price, of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article." 1

1 Sec. 3, Article 2, New York Lien Law.