RIGHT OF A LABORER. TO A LIEN UNDER. A CONTRACT WHICH HAS BEEN SUB-LET.

Court of Appeals for Hardin County.

#### Ropp v. Board of County Commissioners of Hardin County, Ohio, et al.

Decided, November 17, 1917.

*Mechanic Lien of Sub-Contractor on Fund When Bis Principal Contractor Discontinues Worlc.*

A laborer who contracts to do and does perform certain of the labor, required in the construction of an improvement under a sub-contract with the principal contractor, is entitled to a lien upon the building fund in the hands of the owner, notwithstanding the principal contractor has sub-let to a third party, without notice to said laborer who continues his labor, that portion of his contract including, such labor, or has suffered the owner to contract directly with said third party for such portion of the improvement, even though a portion of such labor is performed after such third party has begun the discharge of his contract, he having received the benefit of such labor.

*Price & Price,*for plaintiff.

*Donald F. Melhorn*and *Stickle & Cessno,*contra.

*75Hughes, J.

The board of county commissioners entered into a contract with Anstine & Connor for • the improvement of the Reigel Free Turnpike in Jackson township, Hardin county, Ohio, In August, 1915, Anstine & Connor entered into a verbal contract with Albert Ropp, the plaintiff, to do certain hauling for this improvement at .an agreed price of $4 per day. Plaintiff, in the execution of this contract, hauled on dates running from the 10th of August, 1915, to the 1st of September, 1916, which by the terms of his contract amounted in value to $158.95. Thirty-two dollars and thirty-five cents of this amount is claimed to have.accrued on work done after an alleged sub-contract had been entered into between Anstine & Connor and Dalton Hord for the sub-contracting of this same improvement.

The plaintiff filed proper notices and perfected a lien within the statutory time from the date of the'last hauling, but it is contended by the defendant Hord that this perfected a lien only for the $32.35 upon the theory that labor in the value of this amount was done while Hord was executing his contract, and that the balance was done under an independent contract between Anstine & Connor and the plaintiff Ropp.

This theory of Hord is presented as an issue by the averments of his answer, which are denied by the plaintiff.

Whether Hord be considered as a sub-contractor, undertaking to complete the work covered by the original contract between the commissioners and Anstine & Connor, or whether he be considered as an independent contractor with the commissioners, it maybe said that in any event what he undertook to do was to complete the work that was originally contracted to be done by Anstine & Connor.

It is clear that the plaintiff began the execution of his contract for hauling, and from all that appears in the evidence, he had no reason to believe that when he began his work in the spring of 1916 he was but completing the undertaking that he had originally contracted to do, no evidence being offered tending to show that he had any reason to believe that the work which he had already done in the execution of this contract *76should he considered as a past transaction, nor that the work he was finishing was to be paid for in any other manner than for the work which he had already done.

As was said by Judge Spear in the case of *Vernon*v. Harper, 79 O. S., 181:

> ‘£ The policy of the state with respect to the claims of laborers and material-men to be compensated for their work and material out of the structure to which their work and material have contributed is indicated by the statute as to liens and has been clearly defined in a number of decisions in this and other courts. The statute should be liberally construed in order to carry out the purpose of the General Assembly in its enactment, the legislation being highly remedial in character.”

Fallowing the thought expressed by this same jurist, at page 188, it may well be said that Hord finished the work that was to have been done by Anstine & Connor with the aid of this plaintiff who finished his labor, acting in good faith in compliance with his contract originally entered into with the principal contractor, and his contribution to the work thus accepted by Hord enabled him to complete the work contemplated by the original agreement.

To deny plaintiff the advantage of his outlay would be to permit the mere letter override and defeat the plain spirit and purpose of the statute.

Entertaining these views, we hold that the plaintiff is entitled to a lien on the fund for the full amount of his claim. A decree may be drawn accordingly.

Kinder, J., and Crow, J., concur.