I concur in the opinion of Mr. Justice Gary, except in his construction of section 3008 and 3011 of the Code, as to the meaning of the word "owner," found in those sections, and except, also, in his holding that exceptions six and seven present questions upon which the Circuit Court has not ruled, and are, therefore, not properly before this Court for consideration.
I think the word "owner" has the same meaning in both sections, and that the words "other than the party by whom, or in whose behalf, a contract for labor or materials has been made are used in section 3011 in about the same sense as "unless a contract has been made by him, or in his behalf, for labor or materials." Because if the owner has made a contract for labor or materials, *Page 406 or if such contract has been made in his behalf by an agent duly authorized, the person with whom such contract was made is entitled, under the terms of section 3008, to a lien without giving any notice of his intention to claim such lien; and notice from the owner, after such contract has been made, that he will not be responsible, will not prevent the attaching of the lien.
The correctness of this construction is made more apparent by reference to section 2 of the original act (14 Stat., 220), which read as follows: "Such lien for materials furnished shall not attach, unless the person furnishing the same, before so doing, gives notice to the owner of the property to be affected by the lien, if such owner is not the purchaser, that he intends to claim such lien." (Italics mine). By implication from the use of the words, "if such owner is not the purchaser," and by comparison with the language of section 3008, which immediately preceded as section 1 of the original act, it follows that if the owner is the purchaser, the lien will attach without giving him any notice of intention to claim it. Section 2 of the original act was stricken out by the act of 1896 (22 Stat., 197), and what is now section 3009 substituted for it.
Even where there is no agreement, express or implied, on the part of the owner, or any person having authority from, or rightfully acting for him, I think there may be circumstances under which any person furnishing labor or materials may have a lien, under the statute, as it now reads, on the ground that they were furnished "by consent of the owner, or of some person having authority from one rightfully acting for him, unless the notice required by section 3011 is given." But it will be time enough to decide that point, when a case involving it is presented.
By the terms of section 3009, a sub-contractor is required to give notice of his intention to claim a lien "before performing or furnishing labor or furnishing materials." *Page 407 because there is no privity of contract between him and the owner.
The petitioner can not claim a lien under section 3009, because he is not a sub-contractor, in the sense in which that word is used in the statute. He is only a "materialman." But if he were a sub-contractor he could not claim a lien, because he has not given the notice required by the statute.
His right to a lien depends upon whether he has brought his case within the terms of section 3008. To have done so, he must have shown that he furnished the materials "by virtue of an agreement with or by consent of the owner," for it is not contended, and could not be, under the testimony, that Critcher, the person with whom he dealt, had any authority from, or was rightfully acting for the owner, in procuring the materials. Critcher was acting for himself. By the terms of his contract with Oswald, he was to furnish all the materials, and Oswald had no legal right to interfere with him in getting them from whosoever he pleased. Therefore, he can not be said to have "consented" to his getting them from Metz, in the sense in which the word "consent" is used in the statute. Gray v. Walker, 16 S.C. 147;Geddes v. Bowden, 19 S.C. 1. There is no testimony tending to show an agreement directly or indirectly, between Metz and Oswald.
All the testimony upon that point is the following, as taken from the record:
A.B. Metz, sworn: "Q. Tell the jury all about this lumber you furnished to Mr. Oswald? A. I furnished lumber for Mr. Oswald's house, in Allendale, by order of Mr. Critcher, the man working there. Q. Well, sir? A. The lumber being ordered by Mr. Critcher and Mr. Oswald, both. The Court: What do you mean? A. Lumber ordered by Mr. Critcher and Mr. Oswald. Mr. Bates objects on the ground that the complaint alleges that the lumber was furnished on the solicitation of Mr. Critcher. Mr. Simms objects to this testimony on the ground that it is a violation of the petition. *Page 408 The Court sustained objection. Q. You furnished the lumber? A. Yes, sir. Q. When you furnished it, who was it delivered to? A. Mr. Critcher, for Mr. Oswald's house * * * Q. After you delivered this lumber, what efforts, if any, did you make to get this money? A. I went to Mr. Critcher, and asked him what about my money, and who was to pay my money, whether he was to pay it, or Mr. Oswald. He says to me to make out a statement for the lumber, and he would get the money for me. I made out the statement and gave it to him. In a few days, something like a week — four or five days, or a week — I saw him again, and he told me that Mr. Oswald refused to pay the money over to him, and that I would have to go to him for it. Q. Did you go? A. Yes, sir, I went to Mr. Oswald; he stayed at the house, he said he was not responsible for my money. The Court: Says what? A. I went to Mr. Oswald for the payment of my money, he stayed at his house, built with the material I furnished, he says he was not responsible for the payment of my money. Q. Did he refuse to pay you? A. Yes, sir; said Critcher ought to pay it."
Cross-examination: "Q. Mr. Metz, Critcher ordered the lumber? A. Yes, sir. Q. You furnished it to him? A. Yes, sir. Q. By his order? A. Yes, sir. Q. Did you ever make any contract with Mr. Oswald in reference to the lumber? A. No. Q. Never did? A. No. Q. Mr. Critcher ordered the lumber; you furnished it upon his order and delivered it to Mr. Critcher? A. Yes, sir. Q. You charged it on that book against Mr. Critcher? A. Yes, sir. Q. And when the money became due you demanded your pay from Mr. Critcher? A. I asked him what about my money, as he had ordered me to furnish the lumber for Mr. Oswald's house. Q. You ever have anything to say to Mr. Oswald about it? A. No. Q. You ever give Mr. Oswald any notice about furnishing this lumber, and that you expected that he would be responsible for it? A. No. *Page 409
J.R. Bennett, one of those who hauled the lumber, testified: "Q. In hauling that lumber, did Mr. Oswald ever have any conversation with you about it? A. Yes, sir. Q. What did he say to you? A. He told me to tell Mr. Metz to send good lumber; to tell him not to send any knotty lumber. Q. Did you tell Mr. Metz? A. Yes, sir."
A.B. Metz, recalled: "Q. You stated that Mr. Oswald also ordered lumber to make his house, this house? A. Yes, sir. Q. Please state how he ordered it? A. He sent his order through Mr. Benett, not to send him any knotty lumber."
It clearly appears from his testimony on cross-examination and from this last testimony of the petitioner, that his testimony, in chief, that the lumber was ordered by Critcher and Oswald, both, was only his conclusion as to the legal effect of what was actually said and done. And it as clearly appears that there was no agreement between him and Oswald, unless the single fact that Oswald told Bennett to tell Metz not to send him any knotty lumber can be construed into an agreement. To do so, would, it seems to me, do violence to the language used, and to all our experience in the dealings of men with each other. That Metz did not so understand and construe it appears clearly from his conduct and his testimony. To put such a construction upon it would prevent any man, who had let a house to be built by contract, from making any objection or suggestion to a materialman, as to the kind of materials being furnished, or to a laborer as to the work being done, without subjecting his property to a lien for his pains. And what is more natural than for the owner of a building in course of erection to do that very thing?
In Gray v. Walker, supra, Walker, the agent of the owner, called Gray's attention to the plastering off in a room and asked him to replaster it.
While the record shows that a motion for a new trial was made and refused, it does not show the grounds upon which *Page 410 the motion was based. Therefore the refusal of the Circuit Court to grant the motion is not properly before this Court for consideration. But the record does show that a motion for a nonsuit was made, at the close of the petitioner's testimony, "on the ground that the lumber was furnished at the solicitation of W.E. Critcher, and not at the solicitation of W.B. Oswald," and the sixth exception, while it does not, in so many words, question the correctness of the ruling of the Court on the motion for a nonsuit, does raise the point "that there was no evidence tending to establish any contract, either express or implied, by the owner, W.B. Oswald with the petitioner, A.B. Metz." and the seventh exception makes the point "that the testimony showed that the appellant made only one contract, and that was with the contractor, W.E. Critcher," etc. I think these exceptions are properly before this Court for consideration, in so far as they question the ruling of the Court below that there was some testimony tending to support petitioner's claim for a lien, and I think they should be sustained.
Nevertheless, I concur in the judgment that the case should be remanded to the Circuit Court for such further proceedings as may be necessary, under the statute, for this reason: It does not clearly appear from the testimony whether there was anything left in the hands of Oswald, after deducting from the contract price, the amounts paid by him to Critcher, and the cost of completing the house, according to the contract, after Critcher quit. If there was anything left by the terms of the contract, it would belong to Critcher, and the petitioner should be allowed, under the liberal provisions of the sections of the Code providing for mechanic's liens and for adjusting the rights and equities of all parties in interest, to litigate his right in this proceeding. if he be so advised, to have any surplus in the hands of Oswald, belonging to Critcher, applied to the satisfaction of the debt due him by Critcher. Geddes v. Bowden, 19 S.C. 1. *Page 411