Several issues were specially ordered to be tried by a jury in this action, and were so tried. Among other findings, the jury found that the work done and materials furnished by the defendant, McAuliffe, were not done *695and. furnished in conformity to the contract between the defendants, and that the deviations in the work from such contract were not by the direction of the defendants, The Mayor, &c., except partially by their architects. These findings render it impossible for the plaintiff to succeed.
There are certain facts which must be established to enable a mechanic or material man to recover a judgment against the owner, under the provisions of the act of 1851 and amendment to secure mechanics and others, &c. There must be a contract. The work or materials done or furnished must be in conformity to the contract, unless accepted and objection waived. The defendant must be the owner of the land, upon which the building is erected, partially or otherwise. And there must be something due to the contract- or, or to become due, under the contract.
These are essential prerequisites, and it would be unjust to a defendant owner to dispense with either, but more particularly to hold him responsible to the mechanic or material man if the work done or materials furnished are not and neither of them is in conformity to the contract, and nothing, therefore, due to the contractor. It is true, that this would seem to impose upon the persons named the duty of ascertaining that the materials or work were in conformity to the contract, but the law must make their liens thus acquired by legislative enactment subservient to the owner’s right, between whom and them there is no privity of contract, and to whom they must be strangers. At all events this court has decided the proposition here stated, (Dixon v. La Farge, 1 E. D. Smith, 722,) and it is sustained by every principle of justice.
The plaintiff may suffer, but the defendants, The Mayor, &e., have also suffered by the omission of the defendant, McAuliffe, to perform his contract, and have derived no benefit, apparently, from the labor and materials done and furnished, inasmuch as the building erected was taken down by direction of the Board of Education, because it was not built according to the plans and specifications. Nothing is *696found due to the contractor, and there is nothing in the case to justify the conclusion that he was entitled to any thing from the defendants, The Mayor, &c. For these reasons judgment must he rendered for the defendants, The Mayor, &c., and against the defendant, McAuliffe, for the sum of $1,548 66, with interest from 19th June, 1855.
Ordered accordingly.