#### Robert Dawson, Pltff in Error, *v.*Abel Harrington, Deft in Error.

ERROR TO BROWN.

The Statute creating a lien in favor of mechanics or others performing labor or providing materials, protects those who do so at the instance of the owner of the property. The benefits of the law are not extended to those who render services or furnish materials on account of the contractor.

This was a petition for Mechanic’s lien, by the defendant in error, Abel Harrington, against the plaintiff in error, Robert Dawson, filed in the Brown Circuit Court.

The bill sets forth, that Dawson, by his agent, G. W. Robbins, engaged Harrington to work in a certain mill, which Dawson was building, Dawson to pay Harrington $1 83, per day.

Bill alleges, that he worked one hundred days and had received thirty dollars, and thus there was still due $143 00.

Defendant answered, denying the authority of Robbins, as his agent, and showing that Robbins built the mill by special contract with Dawson; and, if Harrington worked upon the mill at all, it was in the employment of Robbins.

There was a trial by jury, Minshall, Judge, presiding. The evidence produced by Harrington shows that his work was worth $90. No evidence as to what length of time Harrington worked. The defendant offered to prove, that Robbins was to build the mill by contract, and had received payment in full, including Harrington’s work, and this upon the evidence of Harrington, *303given upon a former suit between Dawson and Robbins. This evidence was rejected by the Court. The jury found a verdict for plaintiff for $106, upon which the Court pronounced a common law judgment. The defendant moved for a new trial, which motion was overruled. The defendant now brings the case here by writ of error.

J. A. Singleton & R. S. Blackwell, for Pltff in Error.

C. L. Higbee & M. McConnel, for Deft in Error.

Treat, C. J.

This was a proceeding to enforce a mechanic’s lien, commenced by Harrington against Dawson. The complainant alleged in his bill that, in September, 1847, he was employed by one Robbins, who was the agent of the defendant, to work on a mill, then being erected by the defendant, at the rate of $1 83, per day; and that in pursuance of such contract, he worked on the mill one hundred days, for which there was due him a balance of $143. The defendant alleged in his answer, that Robbins erected the mill for him, for a stipulated compensation ; and he denied, that Robbins was at any time his agent, and that the complainant ever performed any labor on the mill, with his authority or consent. There was a replication to the answer, and a trial before a jury. The complainant introduced a witness, who testified, that complainant’s work on the mill was worth $90; that he was originally employed by Robbins, who had contracted to construct the mill for the defendant; and that the defendant subsequently agreed to see the workmen paid, for what labor they might perform after a specified time, which time the witness could not recollect. On this evidence, the jury returned a verdict in favor of the complainant for $106. The Court overruled a motion to set aside the finding, and rendered judgment for the complainant.

The statute provides that “Any person who shall, by contract with the owner of any piece of land or town lot, furnish labor or materials for erecting or repairing any building, or the appurtenances of any building on such land or lot, shall have a hen upon the whole tract of land or town lot, in the manner herein provided, for the amount due to him for such labor or materials.” R. S. ch. 65, §1. The proof did not bring the complainant *304within this provision. He did not perform-labor on the mill in pursuance of any contract made with the owner. He was employed by Robbins, who had contracted to erect the mill for the defendant. He must, therefore, look to Robbins for compensation, and not to the defendant. Robbins had a lien on the premises, and not those employed by him. The statute only creates a lien in favor of persons performing labor, or providing materials, at the instance of the owner of the property. Its benefits are not extended to those rendering services or furnishing materials on account of the contractor. The undertaking by the defendant to pay for work that should be done after a certain day, cannot avail the complainant, as he failed entirely to show that any part of the services in question were rendered subsequent to that time.

The judgment of the Circuit Court must be reversed, and the bill dismissed with costs.

*Judgment reversed.*