A person who performs labor or furnishes materials to the amount of fifteen dollars or more for erecting, altering, or repairing a house or other building or appurtenances, by virtue of a contract with an agent, contractor, or sub-contractor of the owner, has a lien thereon, and on any right of the owner to the lot of land on which the house, building, or appurtenances stand, if he gives notice in writing to the owner or to the person having charge of the property that he shall claim such lien before performing the labor or furnishing the materials for which it is claimed. The person giving the notice "shall, as often as once in thirty days, furnish to the owner or person having charge of the property on which the lien is claimed an account in writing of the labor performed or materials furnished during the thirty days; and the owner or person in charge shall retain a sufficient sum of money to pay such claim, and shall not be liable to the agent, contractor, or sub-contractor therefor, unless the agent, contractor, or sub-contractor shall first pay it." P. S., c. 141, ss. 10, 13, 15.
The requirement of an account once in thirty days is designed for the protection of the owner. If within thirty days after notice of the claimant's intention to assert a lien he receives no account, he is entitled to understand that within that period nothing has been done for which a lieu is claimed and to act accordingly. But this does not warrant him to assume that a lien may not be asserted for work done or materials furnished during the succeeding thirty days, or afterward. The claimant's failure to render an account in thirty days is not a waiver or withdrawal of his notice. He is not required to furnish an account for which he has been already paid by the contractor. Such an account would be useless. The account is a prerequisite to the maintenance of a lien for the work and materials furnished during the preceding thirty days. If no lieu is claimed no account need be rendered. Whether the owner can take advantage of a failure to render an account by which he is not injured, is a question that need not, now be considered. *Page 551
The principal objection urged against the maintenance of the plaintiff's lien is that his contract with Maurice Dufresne was entire and cannot be apportioned — in other words, that the sum due to him for labor and materials furnished after a partial performance of the contract cannot be determined. The objection has no foundation in fact. The case finds that on December 6, 1893, the plaintiff was paid by the contractors the sum of $500, which was all that was due him for labor and materials by him furnished before that time. This is a finding that on the completion of his contract he would be entitled to receive $662 more from the contractors. It is conceded that for the part of the contract which the plaintiff performed after December 14, 1893, he is justly entitled to $562.45. This is an apportionment by the act of the parties. What the law would do in the absence of the parties' agreement, it is not necessary to consider.
Whether justice required the amendment making the contractors parties to the suit, was a question of fact for the trial court, to whose decision no exception lies. Whether the plaintiff's writ was properly framed for the purpose of enforcing his lien (Bryant v. Warren, 51 N.H. 213; Jacobs v. Knapp, 50 N.H. 71, 79; Hill v. Callahan, 58 N.H. 497), and if not, whether the defect was or could be cured by the amendment, are questions not submitted and not considered.
Judgment for the plaintiff.
WALLACE, J., did not sit: the others concurred.