MECHANIC’S LIENS.

[Franklin Circuit Court,

September Term, 1893.]

Stewart, Shauck and Shearer, JJ.

#### †WATKINS, PEASE & CO. v. SHAW.

1. What Sub Contracior'S Petition must Show.

In an action by a sub-contractor to enforce the lien given him by sec. 3202, Rev. Stat., his petition mast show that the labor and materials were furnished as provided in sec. 3193, that his claim was filed as required by the same section, and if he claims a preference, as required bjr sec. 3195; that his claim was not disputed, or if disputed was settled by arbitration, and that subsequent to so filing his claim a payment fell due from the owner to the head contractor, and that the owner did not pay his claim when the payment fell due or within ten days thereafter, and that subsequent to said ten days he took the steps to obtain the lien provided for in the first-named section.

2. Amount-Due on Original Contract need not be Shown.

It is not necessary that his petition should show the amount due under the original contract at the time his claim was payable, that being especially within the defendant’s knowledge.

On Appeal.

This is an action to enforce a sub-contractor’s lien, and the cause of action is stated in the-petition as follows:

“On the 10th day of September, 1890, plaintiffs began to furnish work and materials, to wit, building materials, under a contract between the plaintiffs, as sub-contractors, and 5 , which work and materials were provided for in a contract between said S. and the defendant Shaw, as owner, for the construction of a building on premises then and still owned by said Shaw, described as follows, viz: Situate, etc.

Plaintiff completed the furnishing of said work and materials on November 26, 1890. and on the same day payment therefor became due but the same was not paid, whereby $262.26 was then owing to'plaintiffs thereon. On December 1, 1890, plaintiff? filed with one C, the duly authorized agent in the premises of the defendant Shaw, a sworn and itemized account of the amount and value of said labor and materials, together with a sworn statement that there were no credits or set-offs thereto, and that no promissory note had been given therefor, and on the same day plaintiffs also filed a copy of said account with the recorder of Franklin county. Said account was not disputed by said S. within ten days after the presentation thereof, to said C. as such agent. Thereafter, and after the next succeeding payments became due from said defendant to said S., said defendant and his agent neglected and refused to pay said demand of plaintiffs, or any part thereof. And thereupon, on March 23. 1891, plaintiffs duly filed with the recorder of said county an affidavit, pursuant to the statute, containing an itemized account of the amount and value of such labor and materials with all *661credits and set-oils thereon, a statement of the contract and of the amounts and times of', payment to he made under the same, and a description of said premis'es. Whereby plaintiffs obtained a mechanic’s lien as sub-contractors for the amount due, and wherefore plaintiffs ask, etc.

A general demurrer was filed to the petition by the defendant Shaw, and the case is no\w submitted to us upon the question so raised.

†

 Cited in Owen & Co. v. Murry, 6 Ohio Dec., 223, 225.

STEWART, C. J.

We are of the opinion that the demurrer in this case should be sustained, for t'he reason that the plaintiffs have failed to allege in their petition facts which the statutes granting them the lien which they seek to enforce, make .essential prerequisites to obtaining a lien. But for the statute no lien such as they call upon the court to enforce could have been obtained by'them, and it is therefore essentia: not only that the conditions precedent required by the statutes should exist, but their existence should be averred in the petition to entitle them to the relief prayed 'for. Endlich Inter, of Statutes, sections 433, 434.

This rule is settled in this state by numerous adjudications. The sections of the Revised Statutes which relate to acquiring-a liqn by a sub-contractor are 3185, 3187, 3193-3206, and from these it appears that a sub-contractor, in order to obtain a lien upon the premises, must perform labor or furnish material or machinery for the construction, alteration, removal or repair of the property, appurtenances or structure, as described in secs. 3184 and 3186, provided for in a contract between the owner, etc., and a principal contractor, and under a contract between such sub-contractor, etc., and a principal contractor or sub-contractor; must file at the time of 'beginning to perform such labor, or furnish such material or machinery, or not more than sixty days from the performance of such labor or delivery of such machinery or material, with the owner, etc., a' sworn and itemized account, etc., with all credits and set-offs thereon. Section 3193. '

In order to notify his fellow sub-contractors, etc., he must at the same time file a copy of this notice with the recorder of the county where the property is situate, and failing to do so, will not be entitled to any preference. Section 3195. If the account is not disputed, or if disputed, after it is settled by arbitration, and the head contractor or sub-contractor neglects or refuses to pay the same within ten days, it is made the duty of the owner, etc., to pay the whole or a *pro rata*share thereof, depending upon the amount of the payment and of the claims filed, out oí the subsequent payments, when due; and upon failure so to do within ten days thereafter, it may be recovered of the owner-in an action for money had and received, provided it does not exceed the balance due the head contractor. Section 3201. Another remedy is given to the sub-contractor by section 3202, and upon the provisions of this section the plaintiffs seek to enforce their claim. Those provisions are in substance that if the owner, etc., fails to pay out of the subsequent payments as they fall due, and for ten days thereafter, the whole or *pro rata*amount /of the claim of the sub-contractor, etc., so filed with him, a lien may be taken upon the building, etc., which shall date back from the date of furnishing the first item of such labor, etc., and have the same operation, effect and duration, with respect to the owner, etc., as the lien of the head contractor in similar cases.

While the statutes are to be liberally construed, in such construction we must always look to the intention of the legislature in their enactment, and see to it not only that all the rights and remedies given to the sub-contractors, etc., are preserved, but also that the rights of the owner, etc., are protected as provided in the statute. Hayden Saddlery Hardware Co. v. Slade, 2 Ohio Circ. Dec., 38. This-petition does not aver when any subsequent payment fell due, nor does it contain, the allegation that when the plaintiffs attempted to obtain their lien under section-3202, ten days had elapsed thereafter. It does not, therefore, show that plaintiffs are entitled to a lien upon the property, and fails to state a 'cause of action. Ohio Lien Laws, pp. 144, 145.

*662O. W. Aldrich, for demurrer.

Huggins & Sowers, *contra.*

It is further claimed that the petition is defective in not alleging that the work and materials were used in the construction of the building, and there are authorities which hold that this is a necessary averment. But we think it sufficiently appears by this petition, at least upon demurrer, that the labor and materials were furnished by the sub-contractor to the contractor for the construction of the building, and this seems to be all the requirement of the statute.

It is also claimed that the petition is defective in not setting out the amount of the subsequent payment out of which the sub-contractors should have been paid, for the reason that his lien can only be enforced for the balance due the subcontractor from the owner and not for the whole of his claim.

We think this is a matter so peculiarly within the knowledge of the owner' that it is a proper matter of defense, and is not essential to make out a cause of action upon the lien; the owner knows what is due from him1 to the head contractor, and also what other claims upon the same fund have been filed with him, and should set up these facts in his answer, and thus his liability will be shown.

The demurrer will be sustained.