The Hawaiian gazette., 1895-11-08

| Suucr eucu STATUTES, courts nav
generally held that the materisl-mal
may have a lien for the REASONABLE,
value OF the materials furnished 10y
him, even though in excess Of tn,
amount payable 10 the principal con
tractor under the original contract.
Our statute il OF this nature. II
gives direct lien upon the property
10 the sub contractor without limi
with reference tn the original contrac
price. The statute provides:
section l. Any person or associa-
ton OF persons furnishing labor oil
material to be used in the coustrue-
ton or repair of any building, struc-
ture, railroad or other undertaking
shall have n lieu for the price agreed
To he paid for such labor or material
IF IL shall not exceed the value there.
of upon such building, structure,
railroad or other undertaking, As well
As upon the interest OF the owner of
such building, structure, railroad or
other undertaking in the land upon
which the same is situated"
This section OF the statute gives n
lien 10 ''any person furnishing mate
risl' aud makes no distinction be
tween contractors and sub-coutractors
Other sections, and 8, show clearly
that subcoutractors were intended To
be included.
The lien il "tor the price agreed to
be paid" This may mean the price
agreed either between the owner aud
contractor or between the contractor
and material mau. Ii won d naturally
mean the price agreed TO on one side
at least by the 'person furnishing the
materials" and that would be the sub
il the materials were fur
nished by him.
There is not only no express or i'm
piled limit of the sub-contractor's lien
TO the price agreed between the owner
aud contractor, but the clause ''if 1t
shall not exceed the value thereof"
would seem TO have been inserted
chiefly for the purpose of preventing
cOliusiou between the contractor
and sub contractor whereby they
might otherwise bind the owner
beyond the real value of the
or labor. This clause would
hardly have been inserted - protect
the owner against bis own agreement
Indeed, he would ordinarily be es-
topped from saying that the price he
agreed 10 pay exceeded the real value.
Again, as q rule the price sgreed
upon between the owner aud the con-
tractor is lump sum for all laoor and
covered by the contract, snu
in such cases the only "price agreed TO
be paid for such labor or material as
may he furnished by the several ms-
or sub-coutraetOrs is the
price Agreed between them and the
Section 8, which provides that when
he work or material is furnished TO a
that is, by u sub-coDtract
)r, laborer or material-man, 1.-THE
,wner may retsin from the smount
,aysole TO the contractor sufficient To
over the amount due or TO become |
Tue TO the person or persons who tiled |
he lien,n may, at first glance, seem |
o indicate that the Legisla' ure con- |
that there would be sutfi /
lent TO satisfy all liens out Of the .
riginal contract price, and that there
ore there was no Intention to give
ny further right. But this Inference
y 30 means follows. Toe SUD
h property, not on the debt PAYABLE
o the contractor; the owner is not
bhged TO retain the money; he is
rely permitted To do so a. one
means % protection 10 himself against
he wrong or mistake or inability of
he contractor. H. is not permitted
D retain the money contrary 10 the
rovi>ious of his contract, except
fter the notice of the lien has been L
led, and yet that notice may be filed
nj proceedings commenced to eu-
lrce the lieu at any time within three
Ionths (Sec. y after the completion
the building for which the
Materials were furnished; that l.,
Ne notice may be flied aud the lien ,
nfOrced after the time when under ,
IL usual ter-s of bulldog contracts ,
ie contractor would have been paid
} full. II Il clear, therefore, thst
elton 8 authorizes a retention OF ,
Ipuey payable to the contrac or, only ,
; q pr lection TO the owner 80 far a j
iere l. any that msy re retsin-d, aud i
lat it does not imply that >ub-con
sectors are To ne bound " payments !
s':e To the cont actor sccor'!iug 10 I
II terms OF the Contract u
We are aware that Il different view /
a. been taken by some courts. See c
Y. LOngmoOr, 80 Tex $50: ii
urt V. Parker County, ~ 10 3SS; q
movies V. Joost, Is Cal. go; Reutou o
COuiey, 70 10. Isl. The statutes r
lder which the Texas and early Cal c
)ruia decisions We're rendered, while Il
sembilUg our statute somewhat, Yet c
tfered from II ia several respects j
bether sufficiently TO justify the dc q
sions made under them, We nerd nos Il
y. Toe woriiUg of our own statute p
well as tie decided weight of au 1,
orIty requires u To mold that the I
b-cOutrsctor Is not thus limited. 4
le later California decision above Il
ed appears clearly To have been n =
neOus under the statute then ia ii
rec ri
The Supreme Courts of Nevada. il
ashington aud New Mexico refused q
follow the Supreme Court of Call :
mia in constituting their statute, IT
lich w-:e copied from the California -
.tute. See Hunter Y. Truck e Lodge, Il
New, "a; snd Spokane, etc, Co V. p
;Ch--oey, p Pac. r wash, les, b
which similar DECISION of the d.
pr-me Court of New Mexico is re- v
rei to; also Golfer V. Fre~e, Is Ind Y,
ami Henry, etc, Co. Y. Evans, 81, G
D. IL. In these cases the California B
u other decisions are discussed K
Statutes of this nature are sustained b
N the Legislative view, in point of
LEY, on tue ground that an owner Il
ought TO compensate those u