1. Mechanics' Liens — Materialmen's Liens — Subcontractor — Variance — Failure of Proof.
Where a lien claim for material furnished is filed under the provisions of Comp. Stat. 1921, sections 7461, 7462, while the proof on the trial shows that if any lien were authorized the right must have been asserted under section 7463, Id., as a subcontractor, the right to the lien fails because of the failure of proof to support it, no contract with the owner being shown.
2. Same.
A contractor agreeing to furnish material and construct an improvement for an agreed price is not the agent of the owner of the premises for the purchase of such material so as to bind the owner in favor of a materialman in absence of a compliance with the law relating to liens in favor of subcontractors.
(Syllabus by Logsdon, C.)
Commissioners' Opinion, Division No. 1.
Opinion by LOGSDON, C.
This was a proceeding to enforce a mattrialman's lien. It is a special statutory proceeding, and the remedy sought to be applied is equitable in character. No money judgment was sought to be recovered against Isaac Holmes and Carrie Holmes, and in fact none could be recovered under the provisions of the statute. Union Bond Investment Co. v. Bernstein, 40 Okla. 527, 139 P. 974; Bryan v. Orient Lumber Coal Co., 55 Okla. 370, 156 P. 897. Plaintiff's lien statement was filed under the provisions of Comp. Stat. 1921, sections 7461 and 7462, and was based upon an alleged contract between the plaintiff and the defendants. No such contract was shown by the evidence introduced upon the trial. Defendants were unknown to plaintiff and knew nothing of where the material came from which was used in the construction of the walk on their premises. Plaintiff's amended petition alleged a contract between Isaac Holmes and Charlie Adams for the construction of said improvement, and alleged that plaintiff furnished the material to Adams, either as the agent of Holmes or as the original contractor. The proof showed that Adams was the contractor and was to furnish the material and perform the work for an agreed price. The furnishing of the material by plaintiff to Adams under such circumstances constitutes plaintiff a subcontractor, but no lien claim was filed by plaintiff as a subcontractor in conformity to the provisions of Comp. Stat. 1921, section 7463. The filing by plaintiff of a lien statement, under the provisions governing contracts with the owner, would not entitle plaintiff to a lien upon proof of a contract with a contractor and the furnishing of material to him. The facts shown by the record in this case bring it clearly within the rule announced by this court in the case of Gentry-Bowers Lumber Co. v. Hamill, 75 Okla. 210, 182 P. 687, in which it is said:
"Where the owner of property makes a contract with a builder to erect a building and to furnish lumber therefor, and such contractor purchases the lumber himself, but fails to pay for same, the contractor alone is responsible; and no lien attaches to the building or land upon which it is erected, under section 3862 of the statute, in favor of the creditor. Darlington-Miller Lbr. Co. v. Lobitz, 4 Okla. 355, 44 P. 481. Such materialman might have a lien as subcontractor under section 3864, Rev. Laws 1910, but no right is claimed in this action under that section of the statute.
"The contract between Hamill and Shirley for the erection of the building did not constitute Shirley the agent of Hamill for the purchase of the material. Cahill-Swift Mfg. Co. v. Sayre, 72 Okla. 88, 178 P. 671; Stetson-Post Mill Co. v. Brown, 21 Wn. 619, 59 P. 507."
At the close of the evidence in the case defendants demurred thereto and filed their motion for judgment. Both the demurrer and the motion for judgment were overruled. Under the authority of Gentry-Bowers Lumber Co. v. Hamill, supra, the action of the trial court in overruling the demurrer to the plaintiff's evidence and in denying the motion for judgment was clearly erroneous.
For the reasons herein stated, the judgment of the trial court is vacated, and the cause is reversed, with directions to sustain the demurrer of the defendants to the evidence of the plaintiff and to dismiss the action.
By the Court: It is so ordered.