Opinion
Argued February 7, 1936 —
Decided May 14, 1936.
1. The Mechanics' Lien act provides a strictly statutory remedy and must be strictly construed; the lien and the mode of enforcing it are creatures of the statute, and the courts have no power either to enlarge or lessen it.
2. The Mechanics' Lien act, as amended by chapter 213 of the laws of 1930, confers no greater right to a lien than existed before the amendment, but imposes an additional requirement or restriction for the creation of a lien, by providing that no one shall be entitled to a lien for any labor performed or materials furnished prior to the filing of a notice of intention to perform such work, or furnish such materials, in the proper office.
3. Where the contract for construction is filed, as provided by section 2 of the Mechanics' Lien act, the owner is liable to the contractor alone for work done and materials furnished, and it follows that where materials are furnished and notice of intention filed, and the building contract is filed subsequently, the lien for materials furnished extends only to such materials as were furnished prior to the filing of the contract.
On appeal from the judgment of the Cumberland County Circuit Court entered on order of Judge Shay, who filed the following opinion:
"A jury having been waived, this case was submitted to the court for decision on an agreed state of facts and briefs on the law. The facts as stipulated, are:
"The defendant Sara P. Hurley contracted in writing with the Camden Construction Company, for the erection, alteration and construction of a building on land owned by the said defendant in the city of Bridgeton.
"The plaintiff is a New Jersey corporation engaged in the lumber business, and furnished lumber and material for the erection of the said building under a contract between it and the Camden Construction Company. The lumber and material was furnished between June 19th and November 19th, 1934, amounting to $1,548.22. The materials were furnished under a contract with the Camden Construction Company and delivered on the property owned by the defendant Sara P. Hurley, to be used in the construction of the building provided for in the aforesaid contract between Sara P. Hurley and the Camden Construction Company.
"The plaintiff company filed a notice of intention as provided by law on June 20th, 1934, in the Cumberland county clerk's office. The said Sara P. Hurley filed a copy of her contract with the Camden Construction Company, for the erection, alteration and construction of the said building, together with specifications and blueprints, on August 23d 1934, in the Cumberland county clerk's office.
"The Camden Construction Company made no payments on account of the said claim. The defendant Sara P. Hurley paid to the plaintiff the sum of $844.44, which sum was paid for lumber and materials furnished by the plaintiff up to the date of the filing of her contract. Said payment was made and accepted without prejudice to either of the parties. There is a balance due on the account of $703.78, with interest from November 19th, 1934.
"The question of law raised, is, if a notice of intention has been filed by materialmen, will the subsequent filing of the written contract discharge the land and building from liens of laborers or materialmen after the date of the filing of the contract.
"The test provided by the statute is the time of the filing of the principal contract with relation to the time of the actual doing of the work for, or the actual furnishing of materials to the principal contractor by third persons, not the time when the contracts for doing such work or furnishing such materials were entered into. Orange Lumber Co. v. De Fago, 103 N.J.L. 8 ; 134 Atl. Rep. 865.
"The Mechanics' Lien act provides a strictly statutory remedy and must be strictly construed — the lien and the mode of enforcing it are creatures of the statute and the lien is just what the statute makes it. The courts have no power either to enlarge or lessen it. Independent of the statute, a debt contracted in the erection of a building, stands no higher in point of natural justice than many other debts. The lienable quality of such a debt should, therefore, be rigidly restricted to just what the legislature has provided. Ayres v. Revere, 25 N.J.L. 474.
"By applying this test to the case sub judice, it appears that the plaintiff is not entitled to a lien for any materials furnished after the filing of the contract, unless the filing of the so-called notice of intention by the plaintiff, as provided in section 1 of the Mechanics' Lien act as amended ( Pamph. L. 1930, ch. 212), confers such a lien to the one filing a notice, for all labor performed or materials furnished, unless the primary contract is on file before any labor is performed or materials furnished to the job.
"Section 2 of the Mechanics' Lien act, as amended by chapter 212, Pamph. L. 1930, p. 972, provides that:
"`Whenever any building, or an addition to any building shall be erected, constructed, completed, altered or repaired in whole or in part by contract in writing, signed by the record owner of the estate or interest in the land which is to be charged with the lien hereunder, such building, and the land whereon it stands, shall be liable to the contractor alone for the work done or materials furnished in pursuance of such contract; provided, said contract, or a duplicate thereof, together with the specifications accompanying the same, or a copy or copies thereof, be filed in the office of the clerk of the county in which such building is situate, before such work done or materials furnished, c.'
"In my opinion, the Mechanics' Lien act as amended by chapter 212, Pamph. L. 1930, confers no greater right to a lien than existed before the amendment, but imposes an additional requirement or restriction for the creation of a lien, to wit — that no one shall be entitled to a lien under the provisions of the Mechanics' Lien act or any acts supplementary thereto or amendatory thereof, for any labor performed or materials furnished prior to the filing in the office of the clerk of the county wherein the land and building to be affected by such lien is situate, of the Mechanics' Notice of Intention to perform such labor or furnish such materials. I do not believe that this additional requirement or restriction invalidate the provisions of section 2 of the act as amended.
"Giving force and effect to section 2, I am of the opinion that as soon as the principal contract is filed, the owner of the estate or interest in the land upon which the building is being erected is protected against the lien of third parties.
"Section 1 of the Mechanics' Lien act as amended provides for a lien to third parties in all cases where work is done or materials furnished, providing, the requirements of the section are complied with. Section 2 of the act as amended, however, limits, restricts or qualifies the general provisions of section 1 and says that the owner shall not be liable to anyone but the contractor for work done and materials furnished if he files the primary contract and does the other things provided in the said section, before such work is done or materials furnished. In other words, section 2 is a limitation or restriction of the general provisions of section 1. These two sections must be considered together to ascertain the meaning of the act. Surely, it was never intended to extend to third parties a lien which did not exist before, by the mere filing of a notice of intention to lien. It is obvious that the mechanics' note of intention to file lien was provided for other purposes.
"In my opinion, the plaintiff's lien for materials furnished extends only to the materials that were furnished prior to the filing of the principal contract."
For the appellant, Russell S. Henderson.
For the respondents, A. Moulton McNutt.
The judgment under review herein will be affirmed, for the reasons expressed in the opinion of Judge Shay in the Cumberland County Circuit Court. For affirmance — THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 13.
For reversal — None.