CONTRACTOR COMPLETING THE WORK ENTITLED TO LIEN.

Court of Appeals for Mahoning County.

#### Minnie Silver, et al v. J. V. Thomas et al.

Decided, June 18, 1918.

*Mechanic’s Liens*— Contract *Awarded to Partners*— One *Abandons the Work, the Other Goes on and Completes It*— Latter *May File a Mechanic’s Lien*— Which *Does not Depend upon the Contract, but on the Fact that Labor and Material were Furnished*— Judgment *may be Entered for Plaintiff after the Granting of Motion for a New rial, When.*

1. When a contract to make an excavation to a building is let to a co-partnership, but before the work is completed one of the partners refuses to proceed and abandons the contract, but the other partner *456carries it on to completion, the latter is entitled to a mechanic’s lien on the property in his own name.

2. The provisions of G. C. 8312 (103 O. L.., 369), “until the statements provided for in this section are made and furnished in the manner and form as herein provided * * * the sub-contractor shall have no right, of action,” etc., does not require the sub-contractor to furnish such statements directly to the owner unless required by such owner to do so. It is sufficient for him to furnish such statements to the original contractor, and it is his duty to furnish them to the owner.

3. When the undisputed facts shown in the trial of an action entitle the plaintiff to judgment, it is not error for the trial judge, after granting a motion for a new trial, to render judgment for the plaintiff upon such facts.

*L. L. George,*for plaintiff.

*J3. M. Brown,*contra.

Metcalfe, J.

This action was begun by the defendant in error, Thomas, to foreclose a mechanic’s lien against the property of the defendant below, Minnie Silver.

Mrs. Silver is the owner of a lot in the city of Youngstown and she entered into a contract with one Katzman to erect a building thereon. Katzman sub-let the excavation of the basement to the defendant, Ralph Maso, and Maso sub-let the contract to Thomas & Keegan, a co-partnership.

After the work had begun Keegan, Mr. Thomas’ partner, refused to go on with the work and thereafter Thomas continued it alone to its completion, and afterwards took out a lien upon the premises in his own name and not in the name of the partnership.

It is insisted that the lien should have been taken in the name of the co-partnership, and not in the name of Thomas alone, and that by reason thereof the lien is invalid.

The right to a mechanic’s lien does not depend upon contract, but depends upon the fact that the plaintiff who claims the lien furnished labor and materials that entered into the construction of the building. The contract gives him the right to do the work, but, after he has completed it, it is the law that *457gives him the right to the lien. We think it makes no difference that the contract was with the firm. After the work was commenced, but before it was completed, one of the partners dropped out of it and the other carried it forward to completion. We think he is clearly entitled to take out the lien in his own name.

But it is insisted that the law was not complied with by Mr. Thomas by reason of the fact that he did not give any notice to the owner of the work and labor performed and materials furnished by him.

We do not think the statutes require a sub-contractor to furnish any statement to the owner of the premises, unless he is required to do so by the owner himself. The language of the statute, Section 8312 General Code (103 O. L. 369), relied upon to sustain the contention of the plaintiff in error, Mrs. Silver, is as follows:

> “Until the statements provided for in this section are made and furnished in the manner and form as herein provided, * **** the sub-contractor shall have no. right of action or lien against the owner, part owner, etc., * * * until he shall have furnished such statement.”

We have to look further to the provisions of the statute to find out what the “statements provided” for in this section are. The statute provides for certain statements which the original contractor shall make on his own account before he can require any payment of money on the contract, and then

> ‘ ‘ The original contractor shall also deliver to such owner, part owner, lessee or mortgagee similar sworn statements from each sub-contractor, accompanied by like certificates from every person furnishing -machinery, material or fuel to such sub-eon-tractor. ’ ’

It seems to us clear, from the provisions of Section 8312, that the sub-contractor is required to furnish the statement named only to the original contractor, and that the duty does not rest upon him to make any statement whatever to the owner, unless .such owner requires him to do so. This seems to us to be made clear by the following provision in the same section:

> *458“In order that the owner, part owner, lessee, mortgagee, or a contractor may be protected, he or his agent may at any time during the progress of the work demand in writing of the contractor, or any sub-contractor, any or all statements herein provided for, which shall be made by the contractor or sub-contractor and given to the owner * * * within ten days after such demand is made.”

"We think that when Mr. Thomas made the statements required by the statute and delivered them to the original contractor he fully complied with the law.

Another question is raised in this ease which is of some interest. The question of the amount of the indebtedness in favor of Thomas against Mrs. Silver was submitted to a jury. After the verdict was rendered the trial judge granted a new trial, and thereupon on his own motion rendered judgment in favor of the plaintiff for the amount of his claim.

It is urged that this was error, but, upon the undisputed facts as they appear from this record, there is no question of the right of the plaintiff to recover. We think, therefore, that the defendant below could not have been prejudiced by the action of the court.

Therefore, the case is affirmed.

Pollock, J., and Farr, J., concur.