1. Mechanic’s Lien: Right of subcontractor. Every person entitled to a mechanic’s lien is a contractor or a sub-contractor within the meaning of these terms as used in the mechanic’s lien act. One who performs labor for a contractor is a sub-contractor, [Mansf. Dig., sec. 4422], and is entitled to the benefits of the act on complying with its provisions in reference to sub-contractors. If his labor has been done upon the improvement after notice to the owner or proprietor of his intention so to labor and of the probable value thereof as contemplated by sec. 4403 of Mansfield’s Digest, subsequent payment therefor by the owner to the contractor will not defeat the lien of the laborer.
In the case under consideration, the plaintiff was a laborer employed by one who had contracted with the owner, who is the defendant, to construct a building for him. There was sufficient testimony to sustain the verdict, to the effect that the plaintiff had notified the owner that he was at work on the building at a given sum per day, and that he would continue his labor, but would hold him responsible for his pay. The lien claimed was for payment of wages due for a part of the week immediately succeeding the notice. The owner paid the contractor therefor, after the notice had been given and the labor performed. But that did not displace the laborer’s right to a lien as before stated. It is argued that his claim should fail because (1) the plaintiff’s statement of account having been made out as though to enforce the lien of a principal contractor, cannot be made the basis of a subcontractor’s lien; and (2) because no statement in writing of the account was ever furnished to the owner of the premises sought to be charged.
2. Same: Proceeding to enforce: Construction of statute.
3. Same: Stating account. When a claim is established which comes plainly within the purview of the mechanic’s lien law, the policy by this court is to give a liberal construction to the provisions of the act regulating the proceeding to preserve the lien, in order to prevent a failure of the remedy. The cases of Murray v. Rapley, 30 Ark., 568, and Anderson v. Seamans, 49 Ib., 475, are instances.. The reason given for the rule is well stated by Judge Smith in the latter case to be because “the lien springs out of the appropriation and use of the mechanic’s labor and furnisher’s materials, and not from the taking of the formal steps which the statute enjoins for the preservation and assertion of the lien and for giving notice to others of its existence and extent.’’ “When the controversy is between the holder of the lien and the proprietor of the land,’’ continues the opinion, “an exact compliance with the statute at all points is not indispensable.’’ A substantial compliance is all that can be reasonably demanded, and that is had when no mandatory provision of the statute for the benefit of' the land owner has been violated. In this case the circumstance that the account and affidavit which the claim for a lien is based, states that the services were rendered under a contract with the land owner, has not misled him into taking any step to his prejudice; and it contains all that the statute requires to preserve alien. It should not, therefore, defeat the lien.
4. Same: Waiver. As to the second point, the statute evidently contemplates that the statement of account to be rendered to the land owner by the sub-contractor shall be in writing, though it does not in terms demand it. It is not required to be presented until the labor is performed, and when not approved by the contractor, and the lien is asserted under secs. 4403-4 Mansfield’s Digest, it can be used by the land owner only as a guide to the amount he should withhold from the contractor. It is only an ex parte statement and cannot of itself operate as a bar to the contractor’s right to recover of the land owner. Writing adds nothing to its efficiency in that respect. It is the fact of the contractor’s indebtedness to the sub-contractor that the land owner must rely upon for his protection in paying the latter what he has contracted to pay the former. If he is satisfied with the sub-contractor’s oral statement of the account, no one else can complain. He may, therefore, waive the ex parte statement in writing. He did so in this instance by placing his rejection of the account, when payment was demanded, solely upon the ground that he had already paid the contractor.
The contractor ought regularly to have been made a party to the action in order that the judgment might operate as a bar to a suit by him against the defendant for the same claim. But no objection has been made on that score.
Affirm.