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


able by the owner to the contractor.
In a few States, AUTHORIZATIONS are
given no lien at all upon the property,
but lien only on the debt payable by
. the owner to the contractor. In many
states a direct lien Is given on the
property, but with an express limita-
ton to the amount Of the original
contract price. Under these two
classes OF statutes, the right OF the
material-man has generally been held
TO be controlled by the state of the
account between the owner and con-
tractor-the material-mau or sub con-
tractor being merely subrOgated 10
the rights of the contractor.
Under other statutes direct lien Is
given upon the property, either with
out qualifying or limiting expressions
as to amount, a. IN many states, or
with expressions clearly showing that
there is no limit, as in few STATES.
Under such statutes, courts have
generally held that the material man
may have a lien for the reasonable
value of the materials furnished by
him, even though in excess Of the
amount payable to the principal con
tractor under the original contract.
Our statute is of this nature. 1t
gives a direct lien upon the property
To the sub contractor without limit
with reference To the original contract
! price. The statute provides:
Section L Any person or assOcia-
/ ton Of persons furnishing labor or
material to be used in the construc-
\ ton or repair of any building, struc-
/ ture, railroad or other undertaking,
shall have a lien for the price agreed
I to be paid for such labor or material
I 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 starute gives
lien to "any person furnishing mate
rial' aud makes no distinction be
tween contractors and sub-contractors.
Other sections, ) and 8, show clearly
/ that subcOutTactOTs were intended to
be included.
The lien is ''fOr the price agreed to
be paid" This may mean the price
agreed either between the owner and
contractor or between the contractor
and material man. 1t wou i'd naturally
mean the price agreed to on one side
at least by the "persOn furnishing the
materials and that would be the sub
contractor if 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
and contractor, but the clause ''if it
shall not exceed the value thereof"
would seem to have been inserted
chiefly for the purpose of preventing
COLLISION between the contractor
and sub-contractor whereby they
might otherwise binh the owner
beyond the real value of the
materials or labor. This clause would
hardly have been inserted to protect
the owner again-t his own agreement.
Indeed, he would ordinarily be es-
topped from saying that the price he
agreed TO pay exceeded the real value.
Again, as a rule the price agreed
upon between the owner aui the con-
tractor is a lump sum for all labor and
material covered by the contract, anu
in such cases the only "price agreed to
be paid for such labor or material as
may be furnished by the several ma
terial-men or sub-cOntractors is the
price agreed between them and the
contractor.
Section 6, which provides that when
the work or material is furnished TO
contractor, that is, by sub-cOntract-
or, labOrer or material man, 1.-The
owner may retain from the amount
payable to the contractor sufficient TO
cover the amount due or to become
due to the person or persons who filed
the lien," may, at first glance, seem
to indicate that the Legislature con-
templated that there would be suth
cient to satisfy all liens out of the
original contract price, aud that there
fore there was no intention to give
any further right. But this Inference
by no means follows. The sub
contractor is given "a lien directly on
the property, not on the deOt payable
to the contractor; the owner is not
obliged to retain the money; be is
merely permitted to do so as one
means of protection TO himself against
the wrong or mistake or inability of
the contractor. He is not permitted
to retain the money contrary TO the
provisions of his contract, except
after the notice of the lien has been
filed, and yet that notice may be fled
and proceedings commenced to en-
force the lien at any time within three
months (Sec. p after the completion
of the building for which the
materials were furnished; that is,
the notice may be filed and the lien
enforced after the time when under /
the usual tercls of building contracts
the contractor would have been paid .
Section authorizes a retention of
money payable to the contractor, only .
as protection to the owner so far as
there is any that may be retained, aud .
that it does not imply that sub-cOn .
tractors are 10 ne bound by payments .
made to the CONT actor according TO .
the terms OF the contract.
We are aware that different view .
has been taken by some courts. See .
V. LOngmoOr, 80 Tex $50; .
Burt V. Parker County, "a To. 33S;
Knowles V. Joost, Is Cal. $40; Renton
V. Conley, 40 10. 1S7. The statutes
under which the Texas aud early Cal
ifOrnia decisions were rendered, while
our statute somewhat, yet
differed from IL in several respects
whether sufficiently to justify the de
cisions made under them, We need not
say. The wording of our own statute
rs well as the decided weight of au
thOrIty requires Us To hold that the