#### Vernon, Administrator, *v.*Harper et al.

*Death of principal contractor*— Does *not deprive*sub-contractor— *Of right of lien, when.*

The death of the principal contractor during the completion of a contract for the improvement of a village street, which contract was thereafter completed by the administrator, does not deprive a sub-contractor who has furnished material which has gone into the work, of his statutory right to a lien upon the fund arising from the contract.

(No. 10500

Decided December 22, 1908.)

Error to the Circuit Court of Athens county.

The controversy between the parties in the courts below was determined upon a demurrer filed by the plaintiff in error, administrator, to the answer of the defendant in error, George H. Harper, and like demurrer to the answer of defendants in error Rumer '& Blyth. Those demurrers were sustained by the common pleas and judgment entered against the answering defendants, and that judgment was reversed by the circuit court. This court is asked to reverse this latter judgment and affirm that of the common pleas.

The pleadings present this question: Can a material man (a sub-contractor) who, under a contract with the principal contractor, has furnished material for the completion of the principal contractor’s contract for the paving of a village street, obtain a lien on the fund which has accrued by virtue of the contract between the village and the principal contractor, the latter having died *182during the progress of the work, and the same having been completed to the acceptance of the village by his administrator ? And if he can, should the money be paid into the hands of the administrator to be paid out by him to the persons entitled thereto ?

*Mr. L. A. Koons*and *Messrs. Grosvenor, Jones & Worstell,*for plaintiff in error.

Assuming that these cross-petitioners have a lien on the fund in the hands of the village, we contend that the money should be paid into the hands of the administrator and be, by him, paid out to the ones legally entitled. Sections 6090 and 6091, Revised Statutes; *Kilbourne*v. *Fay, Exr.,*29 Ohio St., 275; *Linghler*v. *Kraft, Admr.,*3 N. P., N. S., 653.

' We contend that under our statutes, logically construed, no preference to any creditor can be obtained after the death of the debtor, under the mechanics lien statutes, or otherwise. *Hoff’s Appeal,*102 Pa. St., 218.

Unless there is some statutory authority to the contrary, the moment a man dies the time for securing a lien or preference on his property is past. *Kilbourne*v. *Fay, Exr.,*29 Ohio St., 275. An executor or administrator may take notice only of those liens which “a creditor, or other person shall have upon the personal estate of the deceased during his life time.” Section 6091, Revised Statutes.

It follows that any statute giving a *post mortem*lien on a dead man’s effects must be in derogation, not only to the common law but to the above *183statute as well; and must come with such unmistakable clearness in its demands as to satisfy the rules of strict construction applied to statutes in derogation of the common law, and such as seek to supersede the unequivocal terms of other statutes.

By all the' rules of construction if the legislature had intended any other section or sections of this chapter than Section 3192 to extend to executors or administrators of deceased contractors, or others, it would have said so in terms equally explicit.

In order that mechanics liens may be taken after the death of the debtor the statute must explicitly provide for that. *Foster*v. *Stone, 20*Pick., 542.

A mechanics lien cannot be taken after the death of the debtor. *Severance*v. *Hammatt,*28 Me., 511; *Gauss*v. *Hussmann, 22*Mo. App., 115; *Bergin*v. *Braun,*15 O. D., 383.

By Section 3198 the principal contractor is entitled to notice of the filing of the affidavit with the owner, etc., and unless within five days he dispute the claim he is taken to be assenting to its correctness, and no objection can thereafter be entertained. Here the owner has to participate in the very important matter of deciding in a rather summary way both upon the amount and validity of the claim made; and, is it intended that an administrator can be substituted for the contractor? The contractor would likely know, the administrator would.be just as likely not to know whether the claim is valid or invalid, right or wrong. Certainly a very material difference, and, one that may have induced the legislature *184to make the exception already noted as to the executors and administrators of owners'.

*Messrs. Lewis & Sayre*and *Messrs. Ivers & Danford,*for defendants in error.

The contract that we are considering was not a contract for personal services and therefore did not terminate upon the death of the principal contractor. Beach on Modern Law of Contracts, Section 231.

Where the contract with the deceased is executory and the personal representative can sufficiently execute all that the deceased could have done, he may do so and enforce the contract. Beach on Modern Law of Contracts, Section 774; Parsons on Contracts, Section 131.

The estate of a deceased person is bound by his contracts if they are carried out. *McKeown*v. *Harvey,*40 Mich., 226.

When the contract between contractor and subcontractor is made, the sub-contractor’s right in the owner’s money is a mere possibility, but if three things, the completion of both contracts and the service of the itemized statement on the owner —are performed, then the law divides the money in the hands of the owner, transfers it from the contractor to the sub-contractor and makes the owner liable to the sub-contractor, not to the contractor, to the amount of the sub-contractor’s claim. *Bullock*v. *Horn,*44 Ohio St., 425.

If Harper and Rumer & Blyth complied with the law so as to have any rights under Sections 3193 *et seq.,*they are contending in this case for money which is due them from the Village of *185Glouster, money which is their own and with which the administrator of Vernon has nothing to do. The money they earned is in the village treasury, due them, and not the estate of Vernon. There is no lien in the case. By act of the law, this money was transferred to the sub-contractors and the estate of Vernon has no interest in it whatever. *Bullock*v. Horn, 44 Ohio St., 425.

Spear, J.

The first question is answered when •proper construction is given to certain sections of our statute relating, to liens, being sections 3193, 3194, 3198, 3200 find 3203 of the Revised Statutes. These sections, so far as pertinent to this case, provide that any sub-contractor who has furnished material for the construction of a street provided for in the contract between any public authority and a principal contractor, and under a contract between such sub-contractor and the principal contractor, may at any time thereafter, not to exceed four months from the delivery of such material, file with the board or officer a sworn and itemized statement of the amount and value of such material furnished; thereupon such board or officer shall retain subsequent payments froni the principal to secure such claims; the board or officer shall, or the lien claimant may, furnish the principal contractor with a copy thereof within five days, and if such principal contractor shall fail within five days to notify in writing the board or officer of his intention to dispute the claim he shall be considered as assenting to its correctness, and thereupon subsequent payments shall be applied pro rata upon such claim. If the head contractor *186shall neglect or refuse to pay within five days after, his assent to ,or adjustment of the claim, the amount thereof and costs incurred to the subcontractor, the board or officer shall pay when due the whole or pro rata amount thereof out of payments subsequently falling due, and on failure within ten days the sub-contractor furnishing material may recover in an action for money had and received the whole or pro rata amount of his claim not exceeding the balance due the principal contractor. If by collusion or fraud the board or officer *pay*in advance the payments due under the contract, he shall be liable to the subcontractor for the amount due on such contract on the date of filing of the sworn account the same as if no payment had been made.

It is not claimed that there was a literal compliance with the requirements of the statute with respect to furnishing the original contractor with a copy of the verified account of the sub-contractors. There could not have been. The original principal contractor was dead. The claim is, and the record shows that the uncompleted contract between the original contractor and the village was completed by the administrator, the plaintiff, and that the material furnished by the sub-contractor was furnished in pursuance of their agreement with the principal contractor and was accepted byr the administrator and went into the completion of the job thus being conducted to a súccessful termination by the administrator. And the notice, with copy of the sworn account, was in due time served on the administrator, having first been served on the vil*187lage authorities, and the amount or justice of the accounts has never been and is not now disputed. This, it is claimed, was a sufficient compliance with the statute to entitle the sub-contractors to the benefit of the statutory lien, and it was so held by the circuit court. We are of opinion that this claim is well founded. 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. This policy is fully elaborated in *Bullock*v. *Horn,*44 Ohio St., 420, and need not be enlarged upon here. In an earlier case, *Williams, Admr.,*v. *Webb,*2 Dis., 430, it is held that: “The death of the owner of property before a lien has been taken does not interfere with the rights of or prevent the necessary steps to secure a lien by the person performing labor or furnishing materials.” It is further held that, although the statute in terms provides that the account shall be verified by the person performing the labor or furnishing the material, yet that the oath may be made b)^ an agent of the party entitled to the lien, Gholson, J., observing in the opinion that, “While we might be disposed to accede to the general proposition that such statutes should not be extended beyond what their terms clearly import, yet this does not require us to stick to the *188letter.” See also *Foster*v. *Stone,*20 Pick., 542, and *Bergin*v. Braun, 15 O. D., 382.

So in the case at bar we are not required to stick to the letter. The contract was an executory one which the administrator might properly complete. *(Gray*v. *Hawkin’s Admx., 8*Ohio St., 450.) In doing so he acted as principal contractor, stepping into the shoes, for all practical purposes, of h'is decedent. And as such principal contractor he did finish the work with the aid of these men who furnished the material, they acting in good faith in compliance with their contract with the deceased. Their contribution to the work, thus accepted by the administrator, enabled him to complete his decedent’s agreement with the village. To all intents and purposes they complied with the spirit and purpose of the statute. To deny them the advantage of their outlay would be to stick in the bark, to permit the mere letter to override and defeat the plain spirit and purpose of the statute.

The second question seems to present no difficulties. The fund arising from the completion of the paving contract should not be paid to the administrator. It was brought within the jurisdiction of the court of common pleas by the answer of the village iii^tlie.. nature of an interpleader. That court has all the parties before it with full jurisdiction to determine all their rights and render final judgment, and there is no reason for paying money over to the administrator which belongs to the sub-contractors and which they have a right to receive undiminished by any fees *189or cost of any kind on the part of the administrator.

The judgment of the circuit court will be affirmed and the cause remanded to the court of common pleas of Athens county to carry into effect the judgment of the circuit court and this judgment, and the cause to be there proceeded in conformably to the said judgment of the circuit court and of this opinion.

*Judgment affirmed.*

Price, C. J., Shauck, Crew and Summers, JJ., concur.