I concur in the conclusion reached by Mr. Justice Works in the foregoing opinion, and generally in the line of reasoning by which that conclusion is reached. I have no doubt that the legislature has full power to provide that where, as was done in this case, an owner tif real estate, without the intervention of a contract fixing the measure of his liability, proceeds personally, or through another acting with his knowledge, to make improvements thereon, he shall be liable to mechanics, laborers, and material-men for the value of their labor and material, and they shall have a lien therefor. In this case there was no contract; for the law itself declares that if not recorded the pretended contract is “ wholly void.” It is, therefore, as if it had never been made, and fixes no measure of liability for either party, or for any purpose. But after negotiating the terms of the contract with Lane, which was never completed, and never became a valid contract, Howes permitted him to procure material and erect the building; in other words, permitted Lane to act as his agent in the construction of the building upon which these liens were filed. The statute expressly declares that in Such cases the subcontractor—the laborer and material-man—shall be deemed to have contracted directly with the owner, and shall have a lien for the value of his material or labor. There is ho constitutional objection to such a provision; The obligation most frequently assumed by all men engaged in business, and most frequently enforced by the courts, is ah implied one to do the same *181thing, — to pay the value of labor done or materials furnished at the request of the party receiving the benefit thereof, and it makes no difference whether the request was made by him in person, or through one whom he had held out to the world, or to the person furnishing the labor or material, as his agent in the premises.
But it seems to me that the opinion of Mr. Justice Works is susceptible of a construction which would enable a stranger to go upon the land of an absent or nonresident owner, and through laborers and material-men improve him out of his real estate without his knowledge. The legislature has no power to authorize such a proceeding, and no precedent should be established which would sanction it. No person should be entitled to a lien or personal judgment against an owner in any case, unless he contracted the liability in person, or it be shown that he had actual notice in some form of the fact that his property was being improved in a manner which might create a liability or lien. A construction of the statute which would give it the effect of creating a lien, where the owner had no knowledge of the improvement, would render it unconstitutional. In this case there is no pretense of want of knowledge, and everything shows that the owner had actual knowledge of the improvement, and the law charges him with knowledge of the fact that there was no contract limiting his liability.
Hearing in Bank denied.