The term " completion" as used in section nineteen of the Act concerning mechanics' liens (Hitt. 4489), does not mean the completion of the particular job for which a lien is sought, but the completion of the whole work in process of construction. For instance, A., a sub-contractor, takes the job of digging the cellar and laying the foundation for a building of great proportions and great architectural pretensions, from the original contractor, the job to be done in six months; the superstructure is in the hands of the original contractor, and is to be done in three years from a given date. Now it is plain the completion referred to in the section named (Sec. 19, Mechanics' Act), means the completion of the superstructure itself--the whole work, and not the completion of the job of underpinning.
The lien of the sub-contractor attaches as soon as the building is begun, and extends to the whole ground, and the entire building, and not to a particular part only. (Secs. 1, 4, Mechanics' Lien Law; Hitt., Secs. 4471, 74; Okisko Co. v. Matthews, 3 Md. R. 176; Houck on Liens, Sec. 157.)
The contract itself provides that each section of twenty miles shall be a unit, or one construction. The language used is: " It is agreed, etc., that on the completion of the said first section of twenty miles of the work aforesaid, to the acceptance of the said Engineer, and the approval of said Board of Directors, the same shall be accepted and received as fully completed by said party of the second part, and the same shall be so accepted and received, as aforesaid, as each section of twenty miles thereafter of said road is completed as aforesaid." (Canal Co. v. Gordon, 6 Wallace, 586.)
The appellants, by their own wrongful acts, prevented respondents from completing the work; and, consequently, the suggestion made does not apply.
The appellants cannot take advantage of their own wrong. Where the completion of a job is arrested by the act or omission of the party for whom the work is done, the contractor has an election to treat the contract as rescinded, and recover on a quantum meruit the value of his labor; or he may sue upon the agreement, and recover for the work completed at the stipulated price, etc. (Jones v. Judd, 4 N.Y. 412; Haskell v. McKenny, 4 Cal. 411; Hale v. Trout, 35 Cal. 229.)
JUDGES: Rhodes, J. Mr. Chief Justice Wallace and Mr. Justice Crockett, being disqualified, did not sit in this case.
OPINION
RHODES, Judge
The contract entered into between McLaughlin and Cox, Myers & Co., is an entire contract. The provision for the payment for the work, etc., from time to time, according to estimates to be made, does not change the character of the contract in that respect, and make it severable.
It is not alleged in the complaint that the work contracted to be performed has been completed, nor that its performance has been prevented by McLaughlin or either of the defendants, nor that the contract has been rescinded. The statute under which the lien in this case was filed does not contemplate that a contractor or sub-contractor may, from time to time, as the work progresses, file successive liens for work and materials performed and furnished under an entire contract; but he is entitled to acquire only one lien, and for this purpose his claim must be filed within the time specified in the statute, after the completion of the work. It, therefore, does not appear from the complaint that the plaintiffs were entitled to a lien at the time when they filed their account in the Recorder's office.
The lien was filed only upon a portion of the road. The statute, in our opinion, clearly contemplates that a lien, when it attaches, shall bind the whole structure. It would render the statute absurd to hold that one contractor or sub-contractor could acquire a lien upon a bridge, another upon a tunnel, and a third upon a culvert, all of which constitute portions of a railroad; but that interpretation would do no greater violence to the intention of the Legislature than a construction which would permit a lien to be acquired upon each mile or section of the road.
No personal judgment was rendered, and it, therefore, becomes unnecessary, for the purposes of this appeal, to determine whether the Court erred in respect to the amount remaining due to the plaintiffs, or in allowing interest on such amount, or in refusing to find upon the issue of fraud, which was tendered by the defendants.
Judgment reversed, and cause remanded for a new trial.