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determined by whether or not the labor bestowed upon the materials in installing or in incorporating them in the building, is comparatively insignificant or considerable, in

parison 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

In New Jersey it has been held that furnishing to a contractor instrumentalities, which are used by him in performing his contract, does not constitute labor under the statute. In main one who merely guarantees the payment for material is held not to be one who furnishes material. Under the California Statute one who has assigned his claim as collateral has been held to retain, nevertheless, a sufficient interest to entitle him to file a lien."

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 en

3 Bennett v. Davis, 113 Cal. 337.

4 LaGrill v. Mallard, 90 Cal. 373.

5 Roebling's Sons' Co. V. Humboldt, etc., Co., 112 Cal. 288-compare, Salem v. Lane, etc., Co., 189 Ill. 593, holding one furnishing an engine for

an electrical plant a contractor.

6 Hinckley v. Fields, etc., Co., 91 Cal. 136.

7 Quarry etc., Co. v. County 103 Atl. 18.

8 Rounds v. Basham, 116 Me. 199.

9

908.

Heberling v. Day, 209 Pac.

tirely usual, enter into separate agreements with a number of different contractors, covering different phases of the work.10 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. His right to lien protection is now very generally recognized, however, and this in the very jurisdictions where previously a more restricted doctrine was adopted.11

§ 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.12 In California, under an act recognizing improvements as the basis of a lien, papering and decorating have been considered as constituting improvements.13 In Massachusetts, the installing of a drying machine in a glue and chemical manufacturing plant has been construed

10 Duff v. Hoffmann, 63 Pa. St. 192; Schenck v. Uber, 81 Pa. St. 31; Pacific Mutual, etc., Co. v. Fisher, 106 Cal. 224.

v.

11 Chapman v. Faith, 18 Pa. Super. Ct. 578; Lester Houston, 101 N. Carolina, 605; Bryan v. Whitford, 66 Ill. 33 -for erecting and repairing; Powell v. Nolan, 27 Washing

ton 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. 12 Drew v. Mason, 81 Ill. 498. 13 La Grille v. Mallard, 90 Cal. 373.

as embodying merely slight changes, incidental to work on personal property, and as not therefore properly the basis of a lien.14

$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,15 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.16

§ 92. Substantial Performance SufficientStatement of the Rule.—That performance of the contract which is considered as necessary under this rule has been construed, as between the owner

14 Curnew v. Lee, 143 Mass. 105.

15 Case Manufacturing Co. v. Young, 181 N. Y. A. D. 740; Extinguisher Co. v. Seymour, 204 Ill. App. 198, and to effect that the lien depends upon the indebtedness of the owner to the contractor and that the burden is upon the contractor to prove this indebtedness. See:-Brainard v. King's County 155 N. Y. 538; Freese v. Avery 57 N. Y. A. D. 633; Dempsey v. Mt. Sinai Hospital, 186 N. Y. A. D. 334; Kalt Lumber Co. v. Sterner, 121 Misc. (N. Y.) 505.

16 Woolf v. Schaefer, 103 N. Y. A. D. 567, reversing 41 Misc. N. Y. 640; Mahon v.

Guilfoyle, 18 N. Y. Supp. 93; Smith v. Ruggiero, 52 A. D. (N. Y.) 382; Trust Co. v. Guigues, 76 N. J. Eq. 495; Smith v. Coe, 2 Hilt (N. Y.) 365, affirmed 29 N. Y. 666; May v. Menton, 18 Misc. (N. Y.) 737; Derr v. Kearney, 46 Misc. (N. Y.) 148; Rochford V. Rochford, 192 Mass. 231; Pritzlaff, etc., Co. v. Berghoefer, 103 Wis. 359; Bohem v. Seabury, 141 Pa. St. 594; Morrison Co. v. Williams, 200 Mass. 406; Burke v. Coyne, 188 Mass. 401; Frohlich v. Klein, 160 Mich. 142; Kane v. Stone Co., 39 Ohio St. 1; Malbon v. Birney, II Wis. 107; Brydon v. Lutes, 9 Manitoba 463.

and the principal contractor at least, to be a substantial performance. If the contract has been substantially performed, within the meaning of that term as interpreted by the courts, a lien may be enforced.17

The rule has been well stated to be that

"If there has been no wilful departure from the terms of the contract, or omission in essential parts, and the laborer has honestly and faithfully performed the contract in all its material and substantial features, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent and unimportant omissions or defects. The law imposes no such liability upon and exacts no such penalties of the mechanic." 18

In the case of a substantial performance, as distinguished from a complete performance, the lien will, of course, be not for the full amount, but for the contract price less such deductions as properly represent work omitted or improperly performed.19

17 Ruigle V. Wallis Iron Works, 149 N. Y. 439; D. A. Tompkins Co. v. Monticello, etc., Co., 137 Fed. 625; Brandt v. City of New York, 110 N. Y. A. D. 396, affirmed 186 N. Y. 599; Felgenhauer v. Haas, 123 A. D. (N. Y.) 75; Nesbit v. Braker, 104 A. D. (N. Y.) 393; Sinclair v. Talmadge, 35 Barb. (N. Y.) 602; Moore v. Dugan, 179 Mass. 153; Bergfors v. Caron, 190 Mass. 168; Burke v. Coyne, 188 Mass. 401; Harrop v. Loan etc., Co. (Tex.),

204 S. W. 878; Sherry v. Madler, 123 Wis. 621; Kane v. Stone Co., 39 Ohio St. 1.

18 Allen J. in Sinclair v. Tallmadge, 35 Barb. (N. Y.) 602, at p. 604. See also on interpretation of substantial performance, Glacius v. Black, 50 N. Y. 145; Otis Elevator Co. v. Dusenbury, 47 Misc. (N. Y.) 450; Holl v. Long, 34 Misc. (N. Y.) 1; Wollreich v. Fettretch, 4 N. Y. Supp. 326.

19 White v. Livingston, 174 N. Y. 538; Construction Co. v.

$93. Effect of Delay.-A delay by the contractor in carrying out the contract will not prevent him from enforcing his lien rights where the contract has been carried out, although late; but damages for the delay will be deducted from the contract price.20

§ 94. Limitation of Rule.-The foregoing rule is subject to the qualification that where time is stipulated to be of the essence of the contract, that is to say, a fundamental term of the contract, a breach by the contractor of this fundamental provision, by tardiness in the completion of the work, will prevent him from enforcing his rights as a lienor. 21

§ 95. Necessity of Architect's Approval.Where it is provided, as is so usually done, that the work of the contractor must be approved in due course by the architect, and that the certificate of the architect must be presented as a condition precedent to payment, the contractor can enforce no lien without either the presentation of the required certificate, or proof of a proper excuse for not presenting it.22 Where the plaintiff does not produce the certificate specified and relies upon proof that the certificate has been demanded and its delivery by the architect refused, the burden of

Cracker Co., 73 Penn. Superior
Ct. 402; Moore v. Carter, 146
Penn. State 492; Sherry v.
Madler, 123 Wisconsin 621.

20 Benner v. Schmidt, 44 Ill. App. 304.

21 D. A. Tompkins Co. v. Monticello Co., 137 Fed. 625.

22 Thomson-Starrett Co. v. Brooklyn Hts. Realty Co., III N. Y. A. D. 358; Nesbit v. Braker, 104 N. Y. A. D. 393; Highton v. Dessau, 139 N. Y. 607, affirming 19 N. Y. Sup. 395; Bloomington Hotel Co. v. Garthwait, 227 Ill. 613.

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