This doctrine proceeds

"upon the idea that he who furnishes materials for or does labor upon a building should be reimbursed to some just extent out of the improvement, of which the owner gets the benefit, . . . All that the Statute requires as the condition of the lienor's right to such reimbursement is that the labor shall be done upon or the material furnished for the building in process of construction, with the assent of the owner or of the contractors." 21

If it be shown that the owner did not consent to the work being done, but that, on the contrary, the work was contracted for by the lessee entirely on his own account and after the owner had specifically refused to bear any of the expense thereof, the lien will not be enforced.22

be

The consent of the owner need not, necessarily,

express, but may be implied, as well. If he approve the work and receive the benefit accruing therefrom, he will be held to have impliedly consented that it be done. He can not stand idle and allow the work to be done and the benefit thereof to accrue to his property and then turn about and attempt to defeat the lien by the plea that his consent has not been given.23 Stating substantially the same rule, in slightly different phraseology, it has been said that the lien statute in New York "proceeds upon the equitable principle that one who knowingly receives the benefit of the labor or

21 Pell v. Baur, 133 N. Y. 377. 22 McNulty v. Offerman, 164 N. Y. A. D. 949.

23 National Wall-paper Co. v. Sire, 163 N. Y. 122; and see Otis v. Dodd, 90 N. Y. 336.

property of another in the form of improvements upon his land, ought to have his property subjected to a lien for the value of such improve

24 Butler v. Flynn, 51 N. Y. A. D. 225; and see also Nellis v. Bellinger, 6 Hun. N. Y. 560.

CHAPTER III

THE LIEN OF THE CONTRACTOR

§ 89. Classes of Lienors.-In considering the right of the contractor, or subcontractor, or material man, or mechanic, to a lien, it must, imprimis, be recognized that there is a clear distinction in the lien laws between these various classes. The rule has been stated to be that if the claimant's "charge is for materials alone, then he is a material man; if his charge is for work and labor in putting the materials in the building, then he is a contractor for the erection of the building;" " but this rule has later been held too narrow, in that one furnishing and placing in the building materials in finished form should be allowed to claim as a material man just as readily as one furnishing raw materials alone.2

1

Where the contract under which the lien is claimed is a direct contract between the owner and the lien claimant, and involves not only the furnishing of materials but their installation or incorporation in the building as well, the question of whether the person between whom and the owner the contract is made, shall be considered the original contractor or material man, is largely

1 Vice Chancellor Stevenson, in Beckhard v. Rudolph, 68 N. J. Eq. 315.

2 Beckhard v. Rudolph, 68 N. J. Eq. 740, reversing 68 N. J. Eq. 315, supra.

determined by the fact of whether or not the labor bestowed upon the materials in installing or in incorporating them in the building, is comparatively insignificant or considerable, in comparison with the price of the materials so installed. Thus, services consisting of papering and decorating rooms have been said to be the services of the original contractor, while one furnishing an electrical plant or one furnishing a steam plant, has been considered a material man.

5

To qualify as a contractor within the meaning of the lien laws it is not necessary that one be the holder of a contract for the entire work under way or contemplated; the owner may, as is entirely usual, enter into separate agreements with a number of different contractors, covering different phases of the work. Under the more conservative statutes, and in the earlier development of the lien law, the contractor was held to be not entitled to lien rights, for the reason that he could not be classed as a material man; but the right of the contractor to lien protection is now very generally recognized, and this in the very jurisdictions where previously a more restricted doctrine was adopted.8

§ 90. Various Statutory Provisions.—In the case of the contractor, as in the case of the architect, the special provisions of the statutes in each jurisdiction must be considered, in determining whether the services performed are such as are recognized as the proper basis for a lien. In Illinois, work done in ornamenting a house comes within the statute. In California, under an act recognizing improvements as the basis of a lien, papering and decorating have been considered as constituting improvements.10 In Massachusetts, the installing of a drying machine in a glue and chemical manufacturing plant has been construed as embodying merely slight changes, incidental to work on personal property, and as not therefore properly the basis of a lien.11

§ 91. Performance Must Be Proven.-It is almost self-evident that the contractor, if he is to place himself in a position where he may claim the protection of, or advantage accruing from, the statutory lien accorded him, must perform his contract, or show that he has been prevented from performing by the acts of the other party, or that the unperformed provisions of the contract have been waived.12

Houston, 101 N. Carolina, 605; Bryan v. Whitford, 66 Ill. 33 -for erecting and repairing; Powell v. Nolan, 27 Washington 318; Haines v. Holland (1898, Tenn. Ch. App.), 48 S. W. 400; compare also Winder v. Caldwell, 14 How. U. S. 434, decided under U. S.

Statute of 1833 and refusing lien.

9 Drew v. Mason, 81 Ill. 498. 10 La Grille v. Mallard, 90 Cal. 373.

11 Curnew v. Lee, 143 Mass. 105.

12 Woolf v. Schaefer, 103 N. Y. A. D. 567, reversing 41