Shoop v. Powles

Bartol., J., delivered the opinion of this court, The question presented by this appeal is, whether, by the lien laws for Washington county, a person furnishing materials to a contractor, for a building, is required, in order to secure his lien thereon, to give notice of his claim to the owner of the building before payment by the latter tó the contractor. This question depends upon the construction of the acts of 1842, ch. 183, and 1846, ch. 290. By these acts every building erected in Washington county is made subject to a lien foy materials furnished for its construction; and the proviso to the ³⁰⁹ 1st section of the act of 1842 having been repealed by the 1st .section of the act of 184=6, the lien may be enforced, whether the materials be furnished to a contractor or to the owner, in this case it is conceded, that all the requirements of the acts have been complied with, except the preliminary notice to Winters, the own.er, by the appellants, of their intention to .claim a lien. Such a notice, it is contended by the appellee, js made necessary by the 4th section of the act of 1846.

We are of opinion that this section cannot properly receive* such a construction; adopting the language used by the appellants in ¡their brief, we think the only purpose and effect of that section is “to enable the owner of a building, in any case in which he may have the notice, to retain from the claim of the .contractor the amount due the material-man, and in case liens be laid, both by the contractor and the material-man, upon the building, for their respective claims, to deduct from that of the former what may be due to the latter.” But neither that section, nor any other proyision of the acts, requires, in terms, or by fair legal construction, that such notice should be given as essential to the validity of the lien of a material-man upon the building. The hardship and loss, which it is contended such a construction of the law inflicts upon the owner, may be obviated, as it might have been avoided by the appellee in this case, by so framing his contract as to allow him to retain