CONTRACT-ASSIGNMENT- -LIENS.

Butler Circuit Court,

October Term, 1895.]

Swing, Cox and Smith, JJ.

#### The City of Hamilton v. Stilwaugh et al.

*h*Conflicting Rights of Assignee of Principal Contractor and Subcontractors.

An assignment made by the principal contractors to a third party of their claim against a certain city, does not give such assignee a right against the city for the amount so assigned, superior to the rights of other subcontractors, who after the assignment, but within the proper time took out valid liens for the amount due them respectively.

2. Lien of Subcontractors is Superior to Rights of Assignee.

If, after such assignment was made, the assignee gave notice thereof to the *city,*and the city afterwards improperly paid the amount, or any part of it topersona *325who had no right to It as against the assignee, the city would be liable to the assignee for such improper payments; but where other subcontractors took out valid liens after the assignment and before payment was made to the assignee, their right to the fund so assigned became superior to that of the assignee under his assignment.

3. One Advancing Money to Principad Contractor is not a Subcontractor

Where a third party simply advances money to certain contractors to pay the workmen employed by them, such party simply has a claim against the contractors, and he himself can in no sense be considered as a subcontractor, and therefore is not entitled to any lien.

4. Who may Perfect a Mechanic’s Lien.

Section 3193, R. S., and following, give to subcontractors or those who furnish labor or material the *personal right*to perfect a mechanic’s lien, and there is nothing in the statute which seems to authorize the assignee of such a claim to do so.

Appeal from the Court of Common Pleas of Butler county.

Smith, J.

Our conclusions in this case briefly stated, are tbese:

1st. That the assignment made by McNearny & Davis, the principal contractors with the city of Hamilton, to Willard Smyers, of their claim against the city, or of a part of it, which was offered in evidence, and relied on by him as giving him a right against the city for the amoutí¿ so assigned, superior to the rights of other subcontractors, who after this took out liens for the amount due to them respectively, did not have the effect claimed for it. There is no law that we know of that provides for anything of this kind, and in our judgment it would be opposed to the whole spirit of our mechanic’s lien statutes. If after such assignment was made, the assignee gave notice thereof to the city, as seems to have been done, and the city afterwards improperly paid'the amount, or any part of it to persons who had no right to it as against the assignee, the city would be liable to the assignee for such improper payment. But in our view, such assignment and notice did not prevent the city from properly paying the amount due to the other subcontractors who took valid liens after this assignment, before paying anything to Smyers. Their right to the fund thus became superior to his under his assignment.

2d. We are further of the opinion that on the facts disclosed, Smyers was not authorized to take out a sub-contractor’s lien as he attempted to do, and thereby did not acquire any lien on the amount due from the city to the principal contractors. If, as the evidence tends strongly to show, Smyers simply advanced money to the contractors to pay the workman employed by them, he simply had a claim against them, and he himself can in no sense be considered a subcontractor, and therefore was not entitled to any lien. Or if it be considered that his payment of the hands operated to transfer their claims to him (for there was in fact no assignment thereof made by the laborers to him), still we think he Would not be entitled to take out a valid lien therefor. The statutes on the subject, section 3193 and post, give to subcontractors, or those who furnish labor or materials for the work, the *personal right*to take such a lien, but there is nothing in the statute which seems to authorize the assignee of such a claim to do so — and particularly would it seem that it could not be done in a case like this, where the amount claimed was paid to a great many laborers, each of course woiking under a separate and distinct contract, and having separate and distinct claims. How could all of these separate and distinct contracts be set out in one claim *326asserted by the assignee therefor as required by section 3193. It has not been done in this case — and we think it was not the purpose of the law, to allow a lien to be taken by a mere assignee of a claim. The result of this is, that the other lien holders have priority over Smyers, and the claims of the creditors represented by Mr. Wesco, who as assignee of divers persons attempted to file and assert a lien on the fund.

*Alex. F.*Hume, for Smyers.

*M. O.*Burns, for City of Hamilton.

*John F. Neilcen, Millikin, Shotis & Millikin, Aaron Wesco,*for ■ different creditors and lienholders.

We are unable to see how we can in this case, as we are asked to do, go into the question whether the city does not hold more than the sum admitted by it to be due to the principal contractors, and enter a judgment ordering them to pay that sum to these claimants. This is an action in tne nature of an interpleader brought by the city, admitting a certain sum to be in its hands, applicable to the claim of the principal contractors and asking directions as to its payment to the different claimants. We think that questions of this kind must be settled in a different suit. Distributions of the fund may be made in conformity with this opinion.