The Hawaiian gazette., 1895-11-08

materials furnished before the aban-
document. The case would, of course, b.
otherwise IL the statute merely subro
gated the sub contractor To the right
of the contractor.
Filthy, il was provided in the con
tract that the contractor should befor,
each payment, n required, give suffi
client evidence g at the premises wer,
free from all liens; that If at any tim,
there should be any liens for which
the owners might be liable they might
retain from the moneys payable To tn,
contractor sufficient To indemnify
them; and that II there should be ANY
such claim after all payments Were
made the contractor should refund tC
them all moneys that they might be
compelled TO pay in discnsrgiug the
liens. These provisions might estop
the contractor from filing lien, bur
they do not e>top - suo contractor
from doing so They imply, nn the
contrary, that such liens may he tilei
and provide for indemnity in case they
shall be filed Evaus v. Grogan, l5S
Pa. st. l2l; Cresw-ll Iron Works v.
o'Brien, l56 10. lT2.
The assignment by the contractor to
the plaintiff of all moneys payable
under the contract was accepted by
the Hawaiian Lodge "-ubject To all
the conditions of the contract This
did not estop the plaintiff from fling
a lien. 1t did not make him a party
To the contract. The contract itself
was not assigned, but only the moneys
payable under 1t, 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; IL is for the
enforcement of 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, out at the shop of the con.
tractor, who disposed OF the same in
of claim for rent against
himself
Courts elsewhere are about equally
divided upon the question whether n
lien may be sustained for material
sold for, but not actually incorporated
II
held thst the contractor is the quasi
agent of the owner, that the material
man is justified in trusting him, the
contr ,ctor, inasmuch As the owner
has pr--uush'y selected him as one
in whom confidence may be reposed,
aud that il would be unjust to require
thu mat-rial-mtn (and impracticable
f"r him Ia follow up the material and
Prov thar il was all used III q par
ticu'ar building.
We ctuuor go so far. The owner
does not, either expressly or by i'm
give the contractor any au-
ihority TO incur liability on his behalf
ior materials, hut on the contrary he
STIMULATES that the contrac-
Tor himself shall furnish all the ma
.erials and do all the work for a def.
lite sum. The statute, it is true,
makes the contractor the agent of the 1
owner, against the wishes of the latter, /
Dut 10 u very limited extent only. The .
is not justified ia relying
ipon the honesty of the contractor /
because the owner has to some extent .
lone so. He il not bound TO sell his
materials and he must form his own
Judgment of the integrity of the cou-
rac,or. He is sufficiently piogecr ed,
: against the owner, by the pr->ump-
ion that the mae rails Were actually
sed for the pun e for which they
we're sold, throwing the burden ot
root upon the q amer to show the con
rary. II the ma erials wrrz sold
Ir- city 20 the owner or TO the C IN
rae or with tie express approval
{ the owner FIR U.e IN par
GUAR building, the latter would
rOhably in mot ces-~ be IS
'pped from shnwI. "a different Use,
Ut where the -al- il IL tue contractor
'lthout the express approve Al aud per
APPS without he knowledge OF the
wueT, aud the materials ere DOT deliv
red az the building, aud mi>sppll-
alton l. maize ( them, il would c-r-
.inly be unjust 10 the owner TO hold
i'm lisble The contractor is the
yeut of the owner for the purpose of
suitable materials TO tie
Ut into the building but not for the
lrpOse of purchasing materials for
Is, the contractors, own benefit {
he theory of the stNute Is
rat the material Imam may fol :
W his material and bold liable !
i'm iurO whose building it has be l
'me Incorporated and the value d
which it has enhanced. rni- q
lJ-ct does not require that the q
yBer should be held liable r mate :
al which, through the wrong Of the
nev-r went into the build
z. La case of loss under such cir
instances, II l., IN our opinion, more +.
u that, as between innocent par
IS, the loss should remain where ii :
IL. The material msn has duties to
.rfOrm for himself a. we'll as priyi-
ge> toe joy a. the expense of others
e csnuOt act with carelessness aud
row the lass, If any, on innocent
ini parties The statute is to be
rIctiy construed as being in derOga.
N of the common law aud arbitra
y giving preferences 10 certain cred
DIS for claims of no grester merit
au Others which are left Unsecured
e Lucas V. R-dward, 8 H,w. %.
le statute, which gives a lien 10
sons "furuishing labor or materi Al
be used in TIL construction or re-
ir of any building" is easily capa-
: of this construction. See Dear
riff v. Everhsrtt, "A Mo 81 (; Chaplin
Paper Works, 80 Conn, 46I; Hunter
Blanchard, Is ILL.,, 3ls; Sylvester V.
e, etc, Co, so Cal, SO; Weir v.
Irnes, 81 y. W. (Neb J, $50; Lee V.
ng, 10 So. tAl), sos; Tuggard V.
lckmOre, AZ Me, a.
Lastly, the Circuit Court sustained
: lien for certain columns, plates,
d7rs, grills aud gates. of the value