ing rights and privileges long unrecognized, the 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

877. Lien a Statutory Remedy.—Stating, 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 is a condition precedent to the validity and enforcement of the lien, and that the notice of lien must itself comply with the

20 Brooks v. Railway Co., IOI 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; Lumber etc., Co. v. Mill Co., 26 Ohio Cir. Ct. N. S. 413; Labay v. Mining Co., 5 Alaska 134; Nordstrom v. Mining Co., 5 Alaska

210.

21 VanStone v. Stillwell, etc., Manfg. Co., 142 U. S. 128; Withrow L. Co. v. Glasgow, etc., Co., 101 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. Su

terms of the statute in all substantial particulars.22

§ 78. 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.2

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. No statutory lien can be acquired in any event by one who cannot properly be classified as coming within the provisions of

perior 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; Wong v. Rink, 24 Hawaii 181; Armitage v. Bernhein, 187 (Idaho) Pacific 938; Pratt, etc., Co. v. Strand Realty Co., 123 N. E. 771 (Massachusetts) Dyer v. Wallace (Pennsylvania), 107 Atlantic 754; Boise-Payette Lumber Co. v. Sisters (Oregon), 202 Pacific 554; Parsons v. Keeney (Connecticut), 120 Atlantic 505; Cooper v. Holmes, 190 N. W. 936 (Iowa); Bernstein v. Alcorn, (Iowa), 190 N. W. 975; Hollowell v. Schraden, 26 Ohio Cir. Ct. N. S. 97, but note, that so far as the State of Cal

ifornia is concerned, the source of the mechanic's lien is in the constitution, and see, in this connection, Heberling v. Day, 209 Pac. 908, and Young v. Shriver, 206 Pac. 99.

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.

23 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.

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 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 any waiver thereof.27

24 Fox v. Rucker, 30 Ga. 525. 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, 11 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 Ind. 683; Webster City, etc.,

Co. v. Chamberlin, 137 Iowa 717; Cole v. Clarke, 85 Me. 336; Horn, etc., Co. v. Steelmen, 215 Pa. St. 187; Lepage v. Laux (Missouri), 211 S. W. 898; Gates v. Racing Association (N. Y.), 121 N. E. 741; Sullivan v. Bradic (R. I.), 118 Atlantic 513.

26 Costello v. Dale, I Hun. (N. Y.) 489; Marshall V. Cohen, II Misc. (N. Y.) 397; Rush v. Able, 90 Pa. St. 153.

27 Foley v. Alger, 4 E. D. Smith (N. Y.) 719; 134; Coorsen v. Ziehl, 103 Wis. 381.

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 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

In many cases where a direct contract is lacking, nevertheless, if it be shown that the owner has consented to the improvement of the real property in question, the lien will be sustained. 32

28 Perry v. Potashinski, 169 Mass. 351.

35

29 Mornan V. Carroll, 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.

32 Gates V. Racing Association (N. Y.), 121 N. E. 741; Metal Ceiling etc. Co. v. Loan etc. Co., 170 N. Y. Supp. 934; Valenti v. Theatre Co., 99 Misc. 517; Hankinson V. Vantine, 152 N. Y. 20; San Francisco Paving Co. v. Fairfield, 134 California 220; Huntley V. Holt, 58 Conn. 445; Rappard v. Morrison, 120 Georgia 28; Procter v. Tows, 115 Illinois 138; Vickery v. Richardson, 189 Mass. 53; Pickel Marble Com

This rule must be applied with care and judgment however, and with full consideration of the decisions of the particular state in which the lien is sought to be enforced. The courts will differ as to what is meant by consent and what consent will be sufficiently definite to bind the property. It may be held, on the one hand, that if the owner knowingly permits improvements to be made, this will be sufficient to charge the property.

33

And on the other hand, that the assuming of a purely neutral attitude and the failure to protest will not amount to consent.34

Some of the Canadian courts have held that consent alone is not sufficient,35 while the burden of proof as to the consent has been held to be upon the person seeking to enforce the lien.36

pany v. Apollo Turkish Bath Co., 85 Missouri Appeals 313; Warren v. Smith, 44 Texas 245; Wheeler v. Hall, 41 Wisconsin 447.

33 Bowers v. Jarrell, 210 Ill. Apps. 256.

34 Valenti v. Theatre Co., 99 Misc. (N. Y.) 517.

35 Gearing v. Robinson, 27 Ontario Appeals 364; Isitt v. Collieries, Ltd., 28 British Columbia 62; but see Scratch v. Anderson, 11 Alberta L. 55.

36 Dodge v. Romain (N. J.), 18 Atlantic 114.