This action was originally brought by Frank Riggen to foreclose eight labor liens for work done by himself and his seven assignors in the erection of a house for the respondent Proctor K. Perkins. The other parties, *Page 395 Brownell Brothers Company, Gem State Lumber Company, Wood River Power Company and the Coast Lumber Company, were made parties on their claims of liens upon the same property. A judgment of nonsuit was entered against the plaintiff Riggen and the Coast Lumber Company, and in favor of the other lien claimants. Riggen and the Coast Lumber Company appealed from that judgment, and Brownell Brothers Company from the portion of the judgment declaring a priority between the successful lien claimants.
The defendant Perkins entered into a written contract with the Arco Mill Building Company by which the latter agreed "to provide all the materials and to perform all the work" in erecting the dwelling-house in controversy, according to plans and specifications. This company partially completed the building and abandoned its work. All the lien claimants are shown to have dealt directly with the contractor Arco Mill Building Company, and were to have been paid by it. They had no contracts of employment or purchase or sale with, or promise of pay from, the owner.
The labor lien claims did not contain "the name of the person by whom he was employed," as required by C. S., sec. 7346. The labor liens filed were all similar in form to that of plaintiff Riggen. They contained no recital, in the title or elsewhere, of the name of the contractor, or that there was such a contract or contractor. Each recited that the claimant "as laborer" performed labor in and upon that certain building, describing it. The only recital of the name of the owner or person by whom the claimant was employed, was: "That the said Proctor K. Perkins is the owner or reputed owner of said described premises, and caused said labor by the said Frank Riggen."
Counsel for plaintiff Riggen attempts to support the claims for labor liens by the contention that the contractor Arco Mill Building Company was the statutory agent of defendant Perkins, and that thus he should be permitted to establish, under an allegation such as recited, that the defendant employed the labor claimants. The Arco Mill *Page 396 Building Company was the statutory agent of defendant for the purpose of giving a lien upon the premises by one who performed labor for it, but not for the purpose of making a laborer employed by it the direct contract employee of the owner, or thus by law to supply a relation which would support an allegation of the lien or complaint that the laborer was "`employed" by the owner, or that, under the facts, the owner was the "person by whom he was employed." The failure to set forth in the claims of liens, under these circumstances, any statement of the person by whom the laborers were employed, was fatal to the liens. (Robertson v. Moore, 10 Idaho 115,77 P. 218; Steel v. Argentine Mining Co., 4 Idaho 505, 95 Am. St. 144, 42 P. 585; Hogan v. Bigler, 8 Cal. App. 71, 96 P. 97;Dillon v. Hart, 25 Or. 49, 34 P. 817.)
The court entered a nonsuit against the Coast Lumber Company on its claim of lien for materials, upon the insufficiency of its lien claim and cross-complaint. The company has filed no brief and made no appearance on the hearing. We have, however, examined the record, and find the judgment of nonsuit warranted.
The lien claim and cross-complaint of Brownell Brothers Company, a corporation, allege that it furnished "labor and materials," in a total amount named, to Arco Mill Building Company as contractor and as the statutory agent of defendant Perkins, which were for use and actually used in the construction of the building. The court found that appellant Brownell Brothers Company did furnish materials, to be used and actually used, in the amount of $410, and did, under a contract with Arco Mill Building Company so to do, furnish and install, as a subcontractor, the heating plant and plumbing fixtures. The court found in favor of the appellant, giving it a lien which was not contested, except as to its classification; but gave it a lien as a materialman for such items only as paints, hardware, and the like, in the sum of $410, and a lien priority as a subcontractor only for the amounts of its contracts for the installation of the heating plant and plumbing fixtures, which placed this *Page 397 appellant's lien in that amount inferior to those of the Wood River Power Company and the Gem State Lumber Company, who were classified as materialmen and given a priority as such.
The appeal is "from that part of the judgment . . . . wherein it was decreed that the balance of the amount owing Brownell Bros. Company, Ltd., . . . . is . . . . a lien of a subcontractor and is inferior and subject to the liens of Gem State Lumber Company, a corporation, and Wood River Power Company, a corporation. . . . ."
There was evidence that appellant submitted competitive bids for this work, and entered into written contracts with the Arco Mill Building Company, under the terms of which it might well be found to be a subcontractor. Witnesses for appellant testified that these contracts were abrogated by it for some failure of the Arco Mill Building Company to live up to their terms. It is not greatly material whether the written contracts introduced were actually carried out, or whether, as contended by appellant, it furnished the materials and performed the work under oral contracts with the Arco Mill Building Company, for the evidence supports the holding in either event, that it was a subcontractor as to the heating plant and plumbing.
Appellant seeks to support its claim that it was, as to the heating and plumbing, a "materialman," on the theory that the installation of these materials, and the labor necessary to install them, were a part of the contract price of delivery of the materials. The evidence does not support this contention. Appellant did enter into contracts which its officers say were abrogated, but even the lien claim and cross-complaint allege the furnishing of labor and materials to be used, and actually used, in the erection and construction of the building. This corporation could not claim for itself a labor lien; and until the theory sought to be unfolded at the trial and on appeal, the evidence shows that at no time was the labor included in the contract prices of the delivered articles, except in the only logical view of the evidence, that the appellant was a subcontractor. It is *Page 398 shown that the appellant made charges for extras in labor and material and allowances itemized, such as, "Credit use of galv. iron instead of tin, 15.00," and "Allowance same from dining room, 5.40." No reasonable explanation of this evidence can be given, unless appellant was charging for extras above, and making allowances in reduction of, a contract price for the job, not the materials.
Brownell Brothers Company is a corporation. No reasonable theory can be advanced supporting a lien for the items of labor shown, except that of a subcontractor. There is ample evidence to support the finding that its performance was in accordance with its being, and such that it was, a subcontractor. It contracted directly with the original contractor to furnish the material and labor, and erect on the premises the furnace with the necessary piping and outlets, and furnish the labor and material and install the plumbing, all of which the original contractor was bound to do. It was such a contract as, if made with Perkins direct, would have made the appellant a contractor, not a materialman. (Bloom on Mechanics' Liens, p. 72, sec. 66; Dolese Bros. Co. v. Andrecopulas (Okl.),237 P. 844; Fitzgerald v. Neal, 113 Or. 103, 231 P. 645; Smith v.Wilcox, 44 Or. 323, 74 P. 708, 75 P. 710; Hihn-HammondLumber Co. v. Elsom, 171 Cal. 570, Ann. Cas. 1917C, 798,154 P. 12; People v. Campfield, 150 Mich. 675, 114 N.W. 659;Friedman Co. v. Hampden County, 204 Mass. 494, 90 N.E. 851;Republic Supply Co. v. Allen (Tex.Civ.App.), 262 S.W. 113.)
The proof as to the claim of Wood River Power Company is meager. Its itemized statement in evidence, under the head of "`Work ordered" recites, "Inside wiring at P.K. Perkins Res.," and the items include various electric supplies such as wire, tape, switches, porcelain tubes, and the like, with labor charges shown by the evidence to have been for installation of the wiring. Each item of electric supplies was itemized and priced. The lien claim and cross-complaint set forth specifically a claim for labor and materials furnished. There was no proof offered which *Page 399 would logically support the inclusion of the price of the labor claimed upon any theory as a part of the delivered price of the articles of electric supplies. There was no contest over the Wood River Power Company having a lien. The only reasonable conclusion that can be arrived at is that if it is to have a lien including the labor, it must be as a subcontractor doing the work of the Arco Mill Building Company as contractor. The proof does not support a claim of lien in its behalf with any priority over that of Brownell Brothers Company, to wit: that of a subcontractor.
The evidence on behalf of the Gem State Lumber Company is sufficient to support a finding that it was a materialman, and entitled to a lien as such.
The judgment will be affirmed as to plaintiff Riggen and the Coast Lumber Company and the Gem State Lumber Company, and will be modified to give to the Wood River Power Company a lien as subcontractor upon a par with that portion of the claim of Brownell Brothers Company which was classified as such. It is so ordered. Costs to respondent Gem State Lumber Company. No other costs allowed.
Wm. E. Lee and Givens, JJ., concur.
(May 29, 1926.) ON PETITION FOR REHEARING.