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with the main contractor. If the breach of the contract is on the part of the owner as distinguished from the contractor, and the latter's failure to complete results from such a condition, the lien of the subcontractor may be enforced to the extent of such part of the contract price as may remain unpaid.8

§ 110. Rights of Subcontractor as Affected by Contract.-There is a diversity of opinion among the courts of the different States as to the validity and effect of a provision in a building contract providing that the subcontractor shall not acquire a lien, or providing that the contractor may not, without the owner's consent, sublet his contract. In some jurisdictions it has been held that a lien, being purely statutory, and provided solely by the decree of the Legislature, cannot be interfered with by the provisions of the building contract, and that the subcontractor is accordingly entitled to his lien, irrespective of any covenant which the contractor may have made in this connection with the owner, while in other jurisdictions the courts have considered that the subcontractor is charge

Delray, etc., Co. v. Keohone, 132 Mich. 17.

8 Person v. Stoll, 72 N. Y. A. D. 141, affirmed 174 N. Y. 548.

Atlantic, etc., Co. v. Donnelly, 59 N. J. L. 48; see also Huttig, etc., Co. v. Denny Hotel Co., 6 Washington 122; and that a subcontractor is entitled to his lien despite a pro

vision that the contractor may not sublet the contract and despite the fact that the owner has not given his consent to the making of the contract between the contractor and the subcontractor, see Wahlstrom v. Trulson, 165 Mass. 429; Perry v. Potashinski, 169 Mass. 351.

able with notice of the provisions of the building contract and is, accordingly, barred from his lien under such circumstances.10

§ 111. Employees and Material Men of Subcontractor. It was a very general rule in the earlier stages of the development of the lien law that the employee of a subcontractor was not entitled to any lien rights.11 The same rule was likewise applied to those furnishing materials,12 or furnishing labor to the subcontractor. 13

The stringency of these earlier decisions has been largely modified, however, by statutes and decisions providing in substance for liens in favor of those performing labor or furnishing materials for subcontractors.1

10 Dersheimer v. Maloney, 143 Pa. St. 532; Schroeder v. Galland, 134 Pa. St. 277; Seaman v. Biemann, 108 Wis. 365.

11 Central Trust Co. v. Richmond, etc., Co., 54 Fed. 723; Harlan v. Rand, 27 Pa. St. 511; Culver v. Attwood, 170 Ill. 432; Morrison v. Whaley, 16 R. I. 715; Farmer v. St. Croix, etc., Co., 117 Wis. 76.

12 Central Trust Co. v. Richmond, etc., Co., 54 Fed. 723; Wood v. Donaldson, 17 Wend. (N. Y.) 550, affirmed 22 Wend. 395; Heroy v. Hendricks, 4 E. D. Smith (N. Y.) 768; Carlisle v. Knapp, 51 N. J. L. 329; Duff v. Hoffmann, 63 Pa. St. 191; Harbeck v. Southwell, 18 Wis. 418; Stephens v. United R. R., etc., Co., 29 Ohio St. 227.

13 Central Trust Co. v. Richmond, etc., Co., 54 Fed. 723;

Wood v. Donaldson, 17 Wend. (N. Y.) 550, affirmed 22 Wend. 395; Cairo, etc., Co. v. Watson, 85 Ill. 531; Vandenberg v. P. T. Walton, etc., Co., 19 Okla. 169.

14 Vogel v. Luitwieler, 52 Hun. (N. Y.) 184; Brainard v. County of Kings, 84 Hun. (N. Y.) 290, affirmed 155 N. Y. 538; Garrison v. Borio, 61 N. J. Eq. 236, 47 Atl. 1060; Gardner, etc., Co. v. N. Y. Central, etc., Co., 72 N. J. L. 257; distinguishing Carlisle v. Knapp, 51 N. J. L. 329; Snyder v. N. Y. Central, etc., Co., 72 N. J. L. 262; Smith v. Neubaur, 144 Ind. 95; Barlow Bros. Co. v. Gaffney, 76 Conn. 107; Macomber v. Bigelow, 126 Cal. 9; Pere Marquette R. Co. v. Baertz, 36 Ind. Apps. 408.

§ 112. Necessity and Effect of Filing or Recording Contract.-There are statutory provisions in a number of the States with reference to the filing or recording of the contract between the owner and the contractor, and while discussion of these might properly be included under the separate discussion to be given to the construction contract, their effect on the lien rights of the parties is such that it seems preferable that they be considered in the present connection.

In some States these statutes have taken the form of providing that no lien can be predicated upon the contract unless the latter is in writing and recorded; 15 while in others only contracts in excess of specified amounts need be so recorded.18 In California the rule has been modified, by a determination that a filing of a memorandum of the contract, embracing copies of substantially all topics required to be filed by statute, is sufficient."7 In New Jersey a very different situation is found in that, under the New Jersey Laws, in the event that the contract is in writing and is filed, with the specifications, with the clerk of the county where the work is done, at or before the time when the building is begun, the liability of the owner is thereby limited to the contractor only, and does not extend to those performing services or labor 16 Smith v. Bradbury, 148 Cal. 41; Whitla v. Taylor, 6 La. Ann. 480.

15 McClallan v. Smith, II Cush. (Mass.) 238; Conner v. Lewis, 16 Me. 268; Iaege v. Bossieux, 15 Grat (Va.) 83; compare, Nolte v. His Credi

tors, 6 Mart. (N. S.) La. 168.

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or providing materials for the contractor.18 It should not be understood from this rule, however, that the subcontractor or material man is helpless by reason thereof. It prevents him merely from enforcing a lien under the circumstances noted, but it does not prevent him securing a very definite degree of protection by the filing, under the New Jersey law, of what is commonly known as a "Stop Notice," which is, in substance, a notice to the owner of his claim. The effect of this is to place the owner in a position where the payment by him of additional monies to the contractor will be at his peril in view of the notice which he has received. As a practical matter this course will usually result in the owner's refusing to pay to the contractor such balance as may be due him and withholding it from him, subject to proper proof of the claims of those subcontractors from whom notices have been received.

Formerly in New Jersey the filing of specifications or copies thereof with the contract was not required in every instance. It would appear, however,1o that this former rule dispensing with the filing of the specifications was limited largely to those cases where all the work was to be done, and the materials furnished, by the contractor,

18 English v. Warren, 65 N. J. Eq. 30; La Foucherie v. Knutzen, 58 N. J. L. 234; Freedman v. Sandknop, 53 N. J. Eq. 243; Weaver v. Atl., etc., Co., 57 N. J. Eq. 547; Willets v. Earl, 53 N. J. L. 270;

Budd v. Lucky, 28 N. J. L.
484; Ayres v. Revere, 25 N. J.
L. 474; compare, Glading v.
Frick, 88 Pa. St. 460.

19 La Foucherie v. Knutzen, 58 N. J. L. 234, supra.

himself one of the parties to the agreement, and that, even formerly, the necessity existed of filing these specifications in the event that the contract referred to the specifications for the details of the work to be done, or was itself so incomplete that an examination of the specifications became absolutely necessary for a proper understanding of the arrangements which had been made.20 The filing of the specifications or a duplicate or copy thereof, according to whether the original contract or a duplicate or copy thereof is filed, is, under the present New Jersey statutes, however, mandatory if the owner is to be protected.21

§ 113. Priority of Claims.-In concluding the present discussion of mechanics' liens it should be again noted, and remembered always, that in every instance the only safe course to follow is to refer directly to the statutes of the particular State in which it is desired to enforce the lien. Only in this way can a definite and adequate understanding be reached of what rule is to be applied under the special circumstances existing, and only so can the various elements of the extent and time of accrual of the lien, the property affected thereby, and the rights of priority of respective lienors, be properly determined. Thus, in New York, section thirteen of the lien law gives to those who have performed labor and furnished materials, priority over the general creditors of

20 English v. Warren, 65 N. J. Eq. 30; Weaver v. Atl. Roofing Co., 57 N. J. Eq. 547.

21 English v. Warren, 65 N. J. Eq. 30, supra.

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