The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-11-08


materials for its improvement, and
that he may protect himself from liza
bility beyond the contract price by
employing only such contractors as
are financially responsible, or by with
holding from them such part of the
contract price as may be sufficient TO
satisfy liens, or by requiring them to
give bonds for the delivery OF the pro
perry free from lien-, or by other
means. The tendency of recent legisla
ton seems to be 10 limit the lien Of the
sub-cOntractor to the amount of the
original contract price unpaid at the
time when the notice of the lien is
filed. But courts must cOnstrue sta
tutes as they find them.
FOurthly, il is obvious from the
above reasoning, that an abandon
ment of the work by the contractor
does not work forfeiture of the rights
of sub-coutractor with reference to
materials furnished before the aban-
Comment The case would, of course, be
otherwise il the statute merely subrO-
gated The -ub- contractor 10 the rights
of the contractor.
Filthy, it was provided in the con-
tract that the contractor should before
each payment, If Tequi red, give suffi
Client evidence tuat the premises were
free from all liens; that If at any time
there should be any liens for which
the owners might be liable they might
retain from the moneys payable TO the
contractor sufficient to indemnify
tnem; and that if there should be any
such claim after all payments were
made the contractor should refund to
them all moneys that they might be
compelled to pay in discharging the
liens These provisions might estop
the contractor from filing lien, but
fhaU a aston a GIlh-HOnITAerOF
from doing so. They imply, on the
contrary, that such liens may be filed
and provide for indemnity in case they
shall be filed. Evans V. GrOgan, 153
| Pa. st. 121; Creswell Iron Works V.
/ O'Brien, 156 10. 172.
/ The assignment by the contractor to
/ the plaintiff of all moneys payable
under the contract was accepted by
/ the Hawaiian Lodge Subject to all
| the conditions of the contract" This
/ did not estOp the plaintiff from filing
lien. 1t did not make him party
/ TO the contract. The contract itself
/ was not assigned, but only the moneys
/ payable under it, and, no doubt, the
/ plaintiff could not recover on this
/ assignment any moneys beyond what
would otherwise have been payable
| to the contractor. But the present
claim is not for moneys payable by
the terms of the contract; it Is for the
enforcement of a lien under the
statute.
Sixthly, certain stairway material,
of the value of 800, was delivered, not
at the building, on which the lien is
claimed, but at the shop of the con-
tractor, who disposed of the same in
satisfaction of claim for rent against
himself.
Courts elsewhere are about equally
I 4. 4 81, l.,
lien may be sustained for material
sold for, but not actually incorporated
in. n building. BY some courts it is
held that the contractor is the quasi
agent of the owner, that the material
man is justified in trusting him, the
contractor, inasmuch as the owner
has presumably selected him as one
in whom confidence may be repOSed,
and that it would be unjust to require
the material-man (and practicable
for him) to follow up the material and
prove that it was all used in a par
ticular building.
We cannot go so far. The owner
does not, either expressly or by i'm
plication, give the contractor any au-
thOrity to incur liability on his behalf
for materials, but on the contrary he
expressly stipulates that the contrac-
tor himself shall furnish all tue ma
terials and do all the work for def
mite sum. The statute, it is true,
makes the contractor the agent of the
owner, against the wishes of the latter,
but to very limited extent only. The |
material-man is not justified III relying
upon the honesty of the contractor
because the owner has to some extent |
done 40. He Is not bound TO sell his |
materials and he must form his own
judgment of the integrity of the con-
tractor. He is sufficiently protected, !
a. against the owner, by the presump- |
ton that the materials were actually |
used for the purpose for which they |
were sold, throwing the burden of |
proof upon the owner to show the con |
trary. If the materials We're sold |
directly 20 the owner or TO the con- |
tractor with the express approval |
of the owner for use in par
ticul4r building, the latter would |
probably in most cases be es-
topped from showing a different use,
but where the sale is to the contractor
without the express approval and per-
haps without the knowledge of the
owner, and the materials are not deliv-
cred at the building, and a misappli-
cation is made Of them, it would Ger
tainly be unjust to the owner TO hold
him liable. The contractor is the
agent of the owner for the purpose of
purchasing suitable materials to be
put into the building but not for the
purpose of purchasing materials for
his, the contractors, own benefit
The theory of the statute is
that the material man may fol
low his material and hold liable
him into whose building it has be-
come incorporated and the value
of which it has enhanced. This
object does not require that the
owner should be held liable for mate
rial which, through the wrong of the
contractor, never went into the build
ing. Ia case of loss under such cir
cumstances, it il, in our opinion, more
just that, as between innocent par
ties, the loss should remain where il
falls. The material man has duties TO
perform for himself as well as priNi-
leges to e. joy at the expense of others.
He CANNOT act with carelessness and