(treating the vjhole case and dissenting from the conclusions of the majority of the court upon two points only). — The views that I entertain of this case are as follows: This action arose over a building contract, by the terms of which plaintiff was to erect for defendant Kleinschmidt a building called the “Granite Block and Annex,” except some items of plumbing, elevator, etc.; but, as these exceptions are not under consideration, I may speak of the contract as one for the erection of the building. Plaintiff was the original contractor with defendant Kleinschmidt. The sum which he was to receive for erectiug the building was $56,710. He claims $763.40 for extra work. He says that $43,274 has been paid, and that the *334balance due is $14,198.51. Plaintiff filed a lien against tlie real estate for this amount. The action is for a foreclosure of the lien and judgment against defendant Kleinschmidt for the amount claimed. Verdict and judgment were for plaintiff for $9,113.50. Defendants’ motion for a new trial was denied. From this order, and from the judgment, the defendants appeal.
There are many facts in this case which can be more conveniently taken up and stated as we arrive at the various points made by appellants.
I find in the record one hundred and twenty specifications of errors and insufficiencies. Appellants have argued only those which we discuss below. In this connection, the remarks of Mr. Justice Miller in Phillips etc. Construction Co. v. Seymour, 91 U. S. 646, are pertinent.
The action was upon a written contract, a copy of which is attached to the complaint. Appellants insist that the action is upon a special contract, and not upon quantum meruit, and that plaintiff must be held to prove his compliance with the contract. Appellants contend that compliance with the contract has not been shown in several respects. I will examine these alleged noncompliances, and will take up appellants’ points in the order in which they present them, as follows: —
1. The contract provides for the services of a supervising architect. On the first of each month the contractor is to be paid eighty per cent of the value of the material provided and labor done, based on the contract price to be given on an estimate of the architect. “It being understood that the final payment shall be within thirty days after this contract is completely finished; provided, that in each of the said cases the architects shall certify in writing that all the work, upon the performance of which tlie payment is to become due, has been done to their satisfaction.”
Plaintiff does not pretend that he obtained the architects’ certificate as to the final balance due for which he now sues. He pleads that he had completed the building under his contract on February 1, 1891. He excuses the nonproduction of the architects’ certificate by the following pleading, which was added to his complaint as an amendment: —
“That on, to wit, the first day of February, 1891, and at *335divers times thereafter, and after the performance as aforesaid of the work and labor, and the furnishing of the materials as aforesaid, the plaintiff requested of Messrs. Paulsen and McConnell, who were then and there a firm of architects, employed by the defendant Kleinschmidt in and about the buildings aforesaid, and who are the architects mentioned and designated in the contract hereinbefore referred to, and which is Exhibit A of the said lien, and requested of them that they give him a certificate in writing, in pursuance of the terms of said contract, of the performance by him of the work and furnishing of the materials under said contract; but although they well knew the performance of the aforesaid work, and of the furnishing of the aforesaid materials, to have been fully and completely done and performed and furnished in compliance with the terms of said contract by plaintiff, and, as plaintiff is informed and believes, with the intention and design of delaying the collection by plaintiff of the moneys due him thereunder, and in collusion with the defendant Kleinschmidt, said Paulsen and McConnell causelessly and perversely refused, failed, and neglected to give him the same, although he had repeatedly requested them so to do.”
It was competent that the parties should contract that payment should be made only upon the certificate of the architects. If the architects’ certificate is not obtained, plaintiff cannot recover, unless he show that the certificate was withheld by the architects wrongfully. The respondent objects that plaintiff’s pleading does not say that there was fraud by the architects in withholding the certificate.
It is interesting to note the language of some of the decided cases in speaking of the conduct of the architects in refusing the certificate. In Kihlberg v. United States, 97 U. S. 398, the words are “ fraud and bad faith; ” in Tetz v. ButterField, 54 Wis. 247; 41 Am. Rep. 29, they are, “grossly and palpably perverse, oppressive, and unjust, so much so that the inference of bad faith and dishonesty would at once arise;’' in Hudson v. McCartney, 33 Wis. 341, the language is, “fraudulently and corruptly;” in Bently v. Davidson, 74 Wis. 420, “dishonestly and arbitrarily;” in Doll v. Noble, 116 N. Y. 230; 15 Am. St. Rep. 398, “unreasonably and in bad *336faitli;” in Nolan v. Whitney, 88 N. Y. 648, “unreasonably and improperly;” in Badger v. Kerber, 61 Ill. 328, “in bad faith and fraudulently;” in Thomas v. Fleury, 26 N. Y. 26, “ unreasonably and in bad faith; ” Voorhis v. Mayor, 46 How. Pr. 116, “fraudulently and unreasonably.”
Such language as that which we have just quoted from the cases is a description of the sort of conduct by the architect which has been considered sufficient to constitute his refusal to give his certificate an excuse for the plaintiff for not producing it. In the case at bar it is observed that it is alleged that the plaintiff demanded the certificate; that the architects knew of the full performance of the work under the contract; and that the architects intended to delay plaintiff in the collection of the money due him, and, in collusion with the defendant Kleinschmidt, causelessly and perversely refused the certificate. I am of opinion that this allegation of the reason why plaintiff did not produce the certificate is sufficient, in view of the cases above cited. (See, also, Martinsburg etc. R. R. Co. v. March, 114 U. S. 549; Bryne v. Sisters of Charity, 45 N. J. L. 213; Michaelis v. Wolf, 136 Ill. 68; Whelen v. Boyd, 114 Pa. St. 228.)
It is not complained by appellants that this question was not fairly submitted to the jury by the instructions of the court. Then the only ground left to appellant is that the evidence does not support the verdict in this respect.
If the building were substantially completed under the contract, the architects had no right to withhold the certificate. Direct evidence of fraud, bad faith, and collusion, is not always obtainable or required. From the great mass of testimony, circumstances, and facts, the jury must have found, under the instruction of the court, that the architects wrongfully, as pleaded, refused the certificate. I am of opinion that in this respect the evidence is not insufficient to justify the verdict.
2. Again, it was claimed by plaintiff that the defendants accepted the building, and so released the plaintiff from the •obligation of the contract to produce the architect’s certificate.
But the conclusion reached upon the last point renders a discussion of this one unnecessary.
3; The plaintiff included in his complaint a claim for some extras, amounting to $763.40. The appellants cite the follow*337ing clause of the contract: “ The contractor shall make no claim for additional work unless the same shall be done in pursuance of a written order from the architects, and notice of all claims shall be made to the architects, in writing, within three days of the beginning of such work.”
Appellants’ position is that respondent has not complied with this provision of the contract, and therefore can make no claim for payment of these extras. But the plaintiff pleads in his complaint that, at the special instance aud request of defendant Kleinschmidt, he performed extra work, aud furnished extra materials of the value of $763.40. The account for these extras, and the pleadings in reference to them, are set out fully in the opinion of the majority of the court. The answer does not deny that such materials were furnished and work done, or that the value was as alleged. It denies only that this was at the request of Kleinschmidt, and it sets up, as a defense against this claim for extras, that if such extras were supplied, as alleged in the complaint, it was not in accordance with the contract, in that it was not done in pursuance of a written order from the architects, and that- no notice of any claim for extra work was made at any time by plaintiff to the architects, in writing. Such is the condition of the pleadings. Now as to the evidence upon this issue. The plaintiff testified that the changes and deviations that were made were sometimes at Paul-sen’s [the architect’s] request, and sometimes at Kleinschmidt’s.” Kleinschmidt aud Paulsen nowhere deny this statement, unless such denial be found in certain testimony of Kleinschmidt and Paulsen, which is referred to in the opinion of the majority of the court, and which testimony, if I understand correotly, is interpreted by that opinion to be a denial by Kleinschmidt and Paulsen that extra work was done and materials furnished on Kleinschmidt’s request, or on his promise to pay therefor. This particular portion of the testimony of Kleinschmidt and Paulsen I shall specifically treat later on in this paragraph, and until I arrive thereat, let it be understood, to avoid repetition, that when I remark, as I shall have frequent occasion to do, that certain evidence of plaintiff is not denied by Kleinschmidt or Paulsen, I mean that it is not denied except as it may be so construed to be, in the particular language of Kleinschmidt *338and Paulsen, which I will discuss later, and which, as I shall endeavor to show, does not seem to me to be a denial.
We find the witness Paulsen says: “There were some alterations. Those alterations were mostly agreed between the contractor and the owner. I ordered some myself.” Again, plaintiff testified as to the extras, that it was “by the order of Eleinschmidt and his superintendent, the architects, and from drawings made by the architects — all but one instance.” Of that one instance I shall speak below. In the forty-three printed pages of Eleinschmidt’s testimony he does not deny this, and in the twenty-nine pages of Paulsen’s testimony he finds no occasion to deny it.
The plaintiff says that the architect was present when he furnished the extra work and material, and that the architect made the details for the work. The architect Paulsen does not deny this. Such is the evidence as to the extras generally. It is admitted that they were furnished. The value is not denied by the answer. There is testimony that they were done at the request of Eleinschmidt, and the architects furnished the details, and this testimony is uncontroverted. In one portion of his testimony plaintiff says that Eleinschmidt said that he “desired these extras to go until the building was completed, and then he would pay them.” But it is fair to observe that it does not specifically appear, in this connection, to how many of the extras Eleinschmidt referred.
But as to most of the items of the extras, there is specific evidence.
As to the extra work on the floor, $72, plaintiff testifies that the floor was laid in pursuance to a contract between Eleinschmidt and himself, and that Eleinschmidt agreed to pay him $72 therefor. Eleinschmidt does not deny this.
As to the rubblestone and carpenter work, $7, plaintiff says that this was at the request of Eleinschmidt’s superintendent. No one denies this testimony.
As to the special contract on the first story ceiling, $235, plaintiff says that the price was submitted to Eleinschmidt, and that he accepted it, and referred plaintiff to Paulsen, and that Paulsen furnished the detail, and that plaintiff furnished the material and work. Eleinschmidt nor Paulsen do not deny this.
*339As to the moving of the vault doors, material, and labor, $38.44, plaintiff testified that “the doors were set as represented on the plans, and they were ordered changed by Kleinschmidt, Paulsen and Mr. Scott.” This was not a matter of changing the doors from a place as indicated in the plans to a new place afterwards selected, but the change was made after the doors were set. It involved pulling down work done in one place, and putting it up in another. It would seem as if this were a matter of extra expense, and so with all the extra items. They were for new work, not for changes made in plans before any construction was done on the original plan. If the latter had been the case, there might be an opportunity, as it seems to me, for another view.
As to the 55 feet of dado, at $3.75 per foot, $206.25, plaintiff says that this was “put up by his [Kleinschmidt’s] request, and allowed as extra work by him.” Plaintiff wrote a letter July 25,1890, to Kleinschmidt, offering to do this dado. That letter is quoted in the majority opinion. Plaintiff testifies that “ Kleinschmidt instructed me to go ahead and do the work, and to go to Paulsen for a detail as to the dado.” All this Kleinschmidt admits to be true by virtue of his not denying it in his testimony. At the close of Paulsen’s testimony, he identified a letter as one he had written to plaintiff. It was introduced in evidence, but for what purpose was not stated by any one. The letter treats of several topics, not here of interest, and then concludes with these words: “The putting in of cherry dado 5 feet high, in middle entrance of center store of granite block, at $3.75 per running foot, straight measurement, and five days’ extention of time for placing the same, is not accepted, as Mr. Kleinschmidt does not want to make any other improvements which will delay the completion of the building.” There is no date to this letter. It does not appear when it was written. Now, plaintiff testifies, and Kleinschmidt admits, that the dado was put in at Kleinschmidt’s order, and neither Kleinschmidt nor Paulsen offer a word of testimony as to the Paulsen letter. They do not show, nor does it appear, that the letter was written after Kleinschmidt ordered the dado, so that it could be construed as countermanding Kleinschmidt’s order. The most that can be gotten out of the letter is that there was a conflict between *340Kleinselimidt’s orders and those of his architect. In the absence of any testimony by Kleinschmidt or Paulsen that the Paulsen letter was written subsequently to Kleinschmidt’s order to put the dado on, and so construable as a revocation of that order, it seems to me fairly clear that the final agreement was that the dado should go on. Otherwise it must be believed that plaintiff did the somewhat unusual act of wilfully building the dado against express orders not to do so, and then expected to recover for his services. Such is not the ordinary conduct of men. It occurs to me that the natural conclusion is that plaintiff’s testimony and Kleinschmidt’s admissions were true; and that, as a matter of fact, Paulsen’s letter, in regard to which he and Kleinschmidt have not a word to say, does not represent the final conclusion of the parties upon the subject. Whether this view be correct or not, the jury so found by virtue of their general verdict, and the evidence certainly supports this finding.
What has been said of the items specifically reviewed is also true as to the basement, $16; plastering, $6.12; base, $2.60; door in shaft, $3, and electric work on elevator, $120. There is specific evidence as to the ordering of these items by Kleinschmidt — evidence that is not controverted by testimony on the part of defendant.
There are three items of extras, freight, and transfer on glass, $19.69, do. $13.70,.and steps to annex second story, $12, and perhaps the item of twenty-nine hours’ work ordered by Scott, $11.60, in regard to which there is not such specific evidence as I note in respect to the other items. But, as observed, plaintiff testified, as to the extras generally, that they were at the order of Kleinschmidt and Paulsen; and as this statement went unchallenged, and the jury found, with this uncontroverted testimony, I see no reason to disturb the verdict.
As I have noted above, when I have observed that the testimony of plaintiff, which I have reviewed, was uncontroverted, I have spoken independently of certain evidence by Kleinschmidt and Paulsen, to which I will now give my attention, and which I do not understand is, in fact, a denial of plaintiff’s testimony in the matter that I have been considering; that is, his testimony as to Kleinschmidt’s ordering add promising to pay for the extras.
*341This testimony of Kleinschmidt is quoted in the majority' opinion of the court, as follows: “ Question. You put all your agreements in this contract and specifications, and you have nefer done anything else? Answer. If I did, it is in writing; I never made other arrangements of any kind that I remember of.” Was this evidence intended by Kleinschmidt, and understood by any one, as a denial that he had ordered or promised to pay for the extras? To understand this matter, it seems to me fairly reasonable that we should notice the context of his testimony, and the subject in regard to which Kleinschmidt was speaking. The remarks of Kleinschmidt, above quoted, were made on cross-examination, and are found on the sixth page of the cross-examination as transcribed. Prior to this point in his testimony he had not once referred to extras. In his cross-examination up to this point he had spoken of a financial arrangement with the Bohn Manufacturing Company. He then spoke of some plastering done by Moran and Lyden, for which they had filed a lien. He then speaks of plaintiff hauling away some temporary roofing, and then comes to a matter of doors, and testifies as follows: “ The reason the doors do not work satisfactorily in that building is because they have shrunk a good deal, and they do not fit properly in the casings, so that the locks will not lock. I think that is the only reason why they do not work satisfactorily.” Then comes this question: “As a matter of fact, have you not an arrangement with Wort-man (the plaintiff) and the Bohn Manufacturing Company that they are to make good all those defects of that kind, and that you are not to pay them until they do?” Then the witness answered as above quoted: “ There is no other arrangement except the contract and the specifications. I never made any further arrangement that I remember of except the contract and specifications. Question. You put all your agreements in this contract and specifications, and you have never done anything else? Answer. If I did, it is in writing; I never made any other arrangement of any kind that I remember of.” The witness then goes on to speak of a leak from an overflow pipe. He then speaks of the elevator, and of other matters in no way connected with the question of extras.
I cannot satisfy my mind that it appears that in his testi*342mony Kleinschmidt was referring to extras at all. Plaintiff had testified specifically and in detail about the extras. Kleinschmidt does not follow him into these details, but, when testifying upon another subject, simply remarks that if he had done anything else, or made any other arrangement of any kind, it was in writing.- When the witness spoke of “any other arrangement,” it seems to me he must have meant arrangements such as he was talking about, and what he was talking about was that he had not any arrangement with Wortman, or the Bohn Manufacturing Company, that they were to make good certain defects before they were to be paid. These alleged defects referred to I do not understand to have anything to do with the account for extras.
To detach a few lines of Kleinsehmidt’s testimony from the subject-matter with which that testimony was dealing, and to attach those lines to a subject other than that which the evidence shows was within the contemplation of the witness at the time, does not seem to me to be a wholly reasonable construction of the witness’ evidence.
Regarding this matter as I feel compelled to do, I am of opinion that Kleinschmidt nowhere denied any of plaintiff’s testimony as to his (Kleinschmidt’s) ordering the extras and promising to pay for them.
Now, as to what may be construed as to any denial by Paulsen of plaintiff’s testimony. Paulsen says nothing in answer to plaintiff’s detailed and specific evidence as to the extras. During his whole direct testimony he does not touch the subject. In the opening of his cross-examination he made the remark quoted in the opinion of the majority. But he says: “There were some alterations. These alterations were mostly agreed between the contractors and the owner. I ordered some myself.” It is true that the witness then went on and referred to some changes in regard to which there was no controversy, but taking his whole testimony as it stands, I am of opinion that it can scarcely be construed as a denial of the particular testimony that plaintiff gave upon the subject under consideration. I cannot satisfy myself that either Kleinschmidt or Paulsen intended to, or did, deny the evidence of plaintiff on this point. But, if I am wrong in my inter*343pretation of the evidence, the most, as I can understand the matter, that can be said, is that the contradiction of plaintiff by defendant and Paulsen is not at all substantial or convincing. The most favorable view that could be taken for the defendants is that there would be simply a conflict of the evidence1 — a conflict which the verdict of the jury resolved, a verdict which the District Court declined to set aside. Admitting for the moment that which I do not think the record requires me to concede — that is, that there was a substantial conflict in the evidence upon the point under consideration — still I cannot conclude that the case would fall under the doctrine of Mattock v. Goughnour, 11 Mont. 265, that, after the denial of a new trial by the District Court, this court can find that the testimony of plaintiff is so improbable and unreasonable that it must be denied belief.
Holding these views, of which I cannot divest myself, I must take it as the facts of the case that the extras were furnished; that defendant received them; that he ordered them; that their value is conceded. If my view of the facts is correct, the application of the law does not seem to be difficult. It occurs to me that it is simply this: The parties first contracted that, if extras were furnished, it should be done with certain written formalities. Then they afterwards contracted that the extras should be furnished without the observation of these formalities. They agreed to one thing on one day, and to another different thing on another subsequent day. I understand that parties may do this. (See Delaney v. Linder, 22 Neb. 274; Badders v. Davis, 88 Ala. 367; McFadden v. O’Donnell, 18 Cal. 160.) Parties may do this even if their second agreement is a modification of the first. I apprehend that this view of the law is not questionable.
I do not understand that the authorities cited by the majority of the court conflict with this view. In the case of Russell v. Da Bandeira, 13 Com. B. N. S. 149, the contract was with the defendant Bandeira. The contract also was that if extras were furnished they should be upon the order of Sir George Sartorius. When the case came up for a decision, it appeared that the extras had been ordered, neither by the defendant, the party to the contract, nor by the person whom it was agreed *344should have authority to order them. They were ordered by some other persons. It occurs to me that the case is thus distinguished in its facts from the case at bar.
The ease of Abbott v. Catch, 13 Md. 314; 71 Am, Dec. 635, is also cited by the majority of the court, but the opinion in that case also uses the following language: “And if, in a case like this, one party omits to have the changes reduced to writing, they must, in view of the rights of the other, be deemed to have been made with reference to the contract price, unless there be proof of an express waiver of that clause of the contract, or a promise to pay for the extra work.” Now, it occurs to me that the Maryland' court would have distinguished the case at bar as being one in which there was “a promise to pay for the extra work.” In the opinion of the majority there is also a quotation from Cemetery Co. v. Coburn, but that opinion goes on to say, on page 207: “There is nothing to show the assent of defendants, or their acquiescence in the alteration; on the contrary, the first we hear of them in reference to it is their refusal to pay the extra charge.” It seems to me that this case is thus distinguished from the one at bar.
The same distinction may be found in Lloyd on Building Contracts, section 48. The ease of Sutherland v. Morris, 45 Hun, 259, is also distinguishable, for the opinion observes: “And they [the contractors] were never requested to do anything more than to complete what they und&'took, in conformity with their contract.” It is observed that in this New York case there was no request to do any extras.
I find the same distinction in Duncan v. Board, of Commrs. 19 Ind. 154, in which the opinion remarks: “But the contractor could not, without the consent of the board, put extra expense,” etc. I think that an inspection of Scammon v. Denio, 72 Cal. 393; Hot Springs Ry. Co. v. Maher, 48 Ark. 522; and Hanley v. Walker, 79 Mich. 607, will demonstrate that these cases are not in conflict with the view that I venture to hold.
I am of opinion that the judgment of the lower court should not be modified in the matter of extras.
4. Appellants contend that, by the statute of this State, a contractor, as such, has not a lien; that persons performing labor and furnishing material have a lien; and that, if a con*345tractor performs labor and furnishes material, he has a lien in that capacity; but that a contractor agreeing to put up a building for a given price has not, as a contractor, a lien upon the real estate in the amount of such price for performing that contract.
Merrigan v. English, 9 Mont. 113, decided that a subcontractor had a lien. Whether a contractor had a lien was not a point in that case. The opinion in that case took it for granted that a contractor had a lien, and spoke of such lien as a matter of course, and then went on to decide that a subcontractor also had a lien.
I do not deem .it necessary to review the cases cited by the appellants, or make any extended argument leading to the conclusion which I hold, for I am of opinion that the matter is settled by the statute.
It is provided in the Compiled Statutes, section 1370, as follows: “ Every mechanic, builder, lumberman, artisan, workman, laborer, or other person or persons,” etc., “that shall do or perform any work and labor upon, or furnish any material, machinery, or fixture for, any building, erection,” etc., “upon complying with the provisions of this chapter shall have for his work or labor done, or material, machinery, or fixtures furnished, a lien upon such building, erection,” etc., “to secure the payment of such work or labor done, or material, machinery, or fixtures furnished.”
A “contractor” is defined in Phillips on Mechanics’ Liens, section 40, as follows: “He who agrees to do anything for another is a contractor. The words ‘owner’and ‘contractor’ denote two persons. A ‘contractor’ is he who makes a contract with the owner. The latter is generally used in the mechanic’s lien law as a correlative of the ‘contractor,’ and means a person who employs a contractor, and for whom the work is done under the contract.”
Our statute gives the lien to, among other persons, a “builder.” A “builder” is defined in the Century Dictionary as follows: “One who builds, or whose occupation is that of building; specifically, one who controls or directs the work of construction in any capacity. In the practice of civil architecture, the builder comes between the architect who designs the work and *346the artisans who execute it. (Eng. Encycl.)” Webster’s Dictionary is to the same effect. The definition of the word “builder” in Anderson’s Dictionary of Law is, “A person whose business it is to construct buildings, etc., .... by contract.” Taking the definitions, both literary and legal, it is plain that, in reference to a building and the law of building, a “builder” is practically, in effect, a “contractor.”
Again, I find section 1391 of the Compiled Statutes as follows: “All persons furnishing things, or doing work, as provided for by this chapter, shall be considered subcontractors, except such as have therefor contracts directly with the owner or proprietor, his agent or trustee.” This section distinguishes, by definition, a “subcontractor” from a “contractor.” If a contractor were not intended to be included among the persons whom the statute gives a lien, why should this distinction be drawn between the contractor and the subcontractor? The whole statute makes it apparent to my mind that the intention of the lien law is to give the lien to the contractor in his capacity as a contractor.
5. The lien law provides in section 1372 as follows: “It shall be the duty of every person, and all persons, except as has been provided for subcontractors, who wish to avail himself or themselves of the benefits of this chapter, to file with the recorder of the county in which the building, erection, bridge, canal, ditch, mining claim, quartz lode, ranch, city or town lots, or other improvements upon lands to be charged with lien, is situated, and within ninety days after the things aforesaid have been furnished, or the work or labor done or performed, a just and true account of the amount due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, and verified by affidavit.”
The appellants object to the validity of the lien claimed by plaintiff, that the contractor did not file “a just and true account;” that the notice of lien should have set out the items of material furnished and labor done. The account as filed showed no reference to the contract, but one item, which was as follows: “To contract for building granite block, $56,710.” It then sets out the extras, but these I have discussed herein-before. It then gives credit for payments made, and claims the *347balance for wbicli tlie action is brought. The point here is whether setting down the item “to contract for building granite block, $56,710,” was filing “a just and true account.” The disposition which I have made of the last point discussed about disposes of this one as well. Appellants’ argument upon this point is based largely upon their position that a general contractor has not a lien. As I have determined that he has such a lien, he had no other account to file, except the statement of his contract and its price. The prices and amounts of the items of material and labor were of no interest to the owner if the contract had been fulfilled according to plans and specifications. The owner was not to pay for any number of days’ labor or any number of dollars’ worth of material. It was of no consequence to him how many days’ labor went into the building, or how much value in material. The owner had but one item to pay, viz., the contract price. The value of the whole amount of labor and material was settled by contract between the parties in advance of construction. It was contracted to be $56,710. The contractor had no claim for the actual value of labor and material. Suppose that the labor and material had actually cost the contractor $60,000 instead of $56,710, or less, would the owner contend that a lien would be good for such actual value of $60,000, so in excess of the contract price of $56,710? But, if his theory is correct, that is the result which he would reach. The fact is that, as between contractor and owner, there were no items, that is, only one item, and that item was $56,710 for the whole contract. (See Phillips on Mechanics’ Liens, §§ 352, 353.)
6. The above views also dispose of the objection that the lien includes the services of the contractor in superintending his own workmen. There is in fact no claim for superintending workmen. To be sure, the contractor may have been obliged to superintend his workmen. But that is not an item of the lien, as we regard it. As above remarked, there was but one item, i. e., $56,710, for erecting the building, and if in fulfilling this contract it was necessary for the contractor to superintend his workmen that cannot vitiate the lien. In completing that one item, i. e., the building, the contractor had the right to do that which was necessary to so complete the building and his contract.
*3487. These remarks also apply to appellants’ contention that the lien contains items of cartage, erecting scaffolding, and removing debris, and that these items are not subjects of lien. The contract provides that the contractor shall cart certain things, erect scaffolding, and remove debris. The appellants refine this matter to the point that the contractor is claiming a lien for freight. That there is not a mechanic’s lien for freight goes without saying. But freight, as such, is not the claim in this lien. To complete the building, scaffolding, removing debris, and moving material, were naturally necessary. The contractor agreed to do these things as part of completing the building. He probably also, impliedly, took upon himself the burden and expense of sharpening his tools and feeding himself. But these were not items of lien any more than the others. Let it be remembered that cartage, removing debris, and scaffolding are not claimed as items. To return to the original position, there was only one item, i. e., the erecting, of the building for a given price. These other matters are simply the necessary elements of that one item. For that the lien is claimed, and, I am of opinion, legally.
8. Again, it is contended that the filing of the lien was premature, appellants relying upon a clause of the contract as follows: “ It being understood that the final payment shall be made within thirty days after this contract is completely finished.” The lien was filed on March 6th. Appellants claim that on March 6th thirty days had not elapsed since the completion of the building, if it were completed at all. The jury found that the building was substantially completed before the lien was filed. This finding I have declined to disturb, so now it is a fact in the case.
The statute provides that a person wishing to avail himself of the lien law shall file his account within a given period after he has furnished the material and performed the labor. Thus a limitation of time is provided within which the lienor may file his lien. If the contract provides that payment shall be deferred for a certain period after the contract is completed, this would not extend the time in which to file the lien, for the statute specifically limits the time in which it must be filed, and that limitation commences to run from the time the material is *349furnished and labor done, and has no reference to the time wheu it is agreed that payment shall be made. Therefore, the filing . in this case is not premature, being made after material was furnished and labor done. Otherwise if the time of payment were, by the terms of the contract, deferred for a period longer than the period within which the lien might be filed, such a provision of the contract, as to payment, would deprive the contractor of his lien. To hold that it was the intention of a contract, by such provisions, to deprive the lienor of his lien, I should feel obliged to find such intent clearly expressed.
9. Appellants object that plaintiff had filed two liens. It would seem that, prior to filing the lien upon which the action was brought, plaintiff had filed a lien which he had considered defective, and then filed the lien under consideration. He never relied upon the old lien. It was abandoned. It was for the same subject-matter as the one at bar. A foreclosure of the present lien is a bar to an action on the former. No reason is advanced why the filing of the first lien vitiated the one upon which the action is brought. The authorities cited by appellants (Jones on Liens, § 1394, and Cox v. Western Pac. R. R. Co. 44 Cal. 18) are not in point. Phillips on Mechanics’ Liens, § 335, and Sarles v. Sharlow, 5 Dak. 100, are in point.
10. Appellants claim that the lien was void because it was filed for an amount in excess of that actually due. But the statute provides, in section 1371: “But any error or mistake in said account or description shall not affect the validity of said lien, provided the property may be identified by said description.” It does not appear that an excessive amount was claimed voluntarily or fraudulently, and the lien was therefore not disturbed. (2 Jones on Liens, §§ 1408, 1413-1415; Nolan v. Lovelock, 1 Mont. 224; Mason v. Germaine, 1 Mont. 263; Black v. Appolonio, 1 Mont. 342.)
11. Again, it is objected by appellants that the complaint does not show that the county recorder indorsed upon the lien the date of filing, and made an abstract as provided in section 1373 of the Compiled Statutes. If this were true, it is an omission of duty by the county recorder, and not by the plaintiff. Appellants cite no authorities to the effect that such omission by the recorder worked the penalty upon the lienor of *350losing his lien. The contrary view was held in Smith v. Headley, 33 Minn. 384.
12. The court allowed to plaintiff an attorney’s fee of $1,000. This was in pursuance to an act of the legislative assembly of March 14, 1889, as follows: “That there be added to section 1394 of the fifth division of the Compiled Laws of Montana, the following: Whenever any action or suit is hereafter brought for the purpose of foreclosing a lien or liens under the provisions of this act, and judgment is therein rendered for the plaintiff, or any person claiming or holding a lien upon any property, the court may order, and it is hereby made the duty of the judge thereof to order, that the defendant against whose property the lien is filed shall pay as costs a reasonable attorney’s fee, to be fixed and allowed by the court, and to be collected as are other costs in the action.” (§ 1394 a.) The appellants contend that this act of the legislature is void.
Some Stales have enacted laws for the allowance of a» attorney’s fee to the plaintiff in an action against a railroad company for the killing of domestic animals. Such law was declared to be unconstitutional in the State of Michigan. (See Wilder v. Chicago etc. Ry. Co. 70 Mich. 382; Schut v. Chicago etc. Ry. Co. 70 Mich. 433; Rinear v. Grand Rapids & I. R. R. Co. 70 Mich. 620.) But laws of this nature were held to be constitutional in Peoria etc. Ry. Co. v. Duggan, 109 Ill. 537; 50 Am. Rep. 619; Kansas Pac. Ry. Co. v. Mower, 16 Kan. 573; Perkins v. St. Louis etc. Ry. Co. 103 Mo. 52; Burlington etc. Ry. Co. v. Dey, Iowa, Feb. 9, 1891, 48 N. W. Rep. 98. But in these cases the law was sustained on the ground that the attorney’s fee so taxed was in the nature of a penalty against the railroad company for the disobedience of the provisions of the statute requiring them to maintain a fence on their right of way. But the allowance of an attorney’s fee in the action to foreclose a mechanic’s lien is not a penalty for the disregard of a statute, and the cases last cited are not in point. The argument of respondent that “ sufficient answer to the position of appellant Kleinschmidt is this: that if he desired to avoid the imposition of costs in tliis action he should have paid his honest debts,”seems-to me to be of the nature oí petitio principii, because the very question in litigation is whether the defendant owes the debt at all.
*351The law before us not being sustainable as providing a penalty for the disregard of a statute of the State, as in the cases above cited, we have simply the inquiry as to whether the discrimination thus given by the statute in favor of the plaintiff and against defendant in the foreclosure of a mechanic’s lien is constitutional. The Constitution provides in section 6, article III.: “Courts of justice shall be open to every person and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay.”
The Constitution of Wisconsin provides (§ 9, art. i.): “Every person shall have a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformable to the laws.” Chief Justice Dixon, of the Supreme Court of that State, said in Durkee v. City of Janesville, 28 Wis. 471; 9 Am. Rep. 500: “I had occasion to express my views of the proper construction and effect of this section in Phelps v. Rooney, 12 Wis. 705, 706. It is obvious there can be no certain remedy in the laws where the legislature may prescribe one rule for one suitor or class of suitors in the courts, and another for all others under like circumstances, or may discriminate between parties to the same suit, giving one a most unjust pecuniary advantage over the other. Parties thus discriminated against would not obtain justice freely and without being obliged to purchase it. To the extent of such discrimination they would be obliged to buy justice and pay for it, thus making it a matter of purchase to those who could afford to pay, contrary to the letter and spirit of this provision. Certainty of remedy implies uniformity of remedy and equality of rights and privileges in all things respecting it, which can only be obtained by general laws, equally binding upon every member of the community. The language denotes that there can be but one remedy for all similar cases, which must operate upon all persons or parties alike, and be equally free and favorable to all.” (See the review of authorities in this opinion.)
*352In Wilder v. Chicago etc. Ry. Co. 70 Mich. 384, the opinion says: “ But the imposing of the attorney’s fee of $25 as costs cannot be upheld. The legislature cannot make unjust distinctions between classes of suitors without violating the spirit of the Constitution. Corporations have equal rights with natural persons, as far as their privileges in the courts are concerned. They can sue and defend in all courts the same as natural persons, and the law must be administered as to them with the same equality and justice which it bestows upon every suitor, and without which the machinery of the law becomes the engine of tyranny. This statute proposes to punish a railroad company for defending a suit brought against it, with a penalty of $25, if it fails to successfully maintain its defense. The individual sues for the loss of his cow, and if it is shown that such loss was occasioned by his own neglect, and through no fault of the company, and he thereby loses his suit, the railroad can recover only the ordinary statutory costs of $10 in justice’s court, but, if he succeeds because of the negligence of the company, the plaintiff is permitted to tax the $10, and an additional penalty of $25; for it is nothing more or less than a penalty. Calling it an ‘attorney’s fee’ does not change its real nature or effect. It is a punishment to the company, and a reward to the plaintiff, and an incentive to litigation on his part. This inequality and injustice cannot be sustained upon any principle known to the law. It is repugnant to our form of government, and out of harmony with the genius of our free institutions. The legislature cannot give to any one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist. The genius, the nature, and the spirit of our State government amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. (Durkee v. City of Janesville, 28 Wis. 464, 468; 9 Am. Rep. 500; Calder v. Bull, 3 Dall. 386, 388.) Here the legislature has granted special advantages to one class, at the expense and to the detriment of another, and has undertaken to make the courts themselves the active agents in this injustice, and to force them to impose penalties in the disguise of costs upon railroad companies for simply exercising, in certain cases, the common right of every person to make a *353defense in the courts when suits are brought against them.” (See, also, Grand Rapids Chair Co. v. Runnels, 77 Mich. 104.)
Leaving out of consideration in the Michigan cases, as there is out of consideration in the case at bar, the question of the attorney’s fee being a penalty for the „ disobedience of the requirements of a statute, I cite those cases for their reasoning upon the general principle.
Our statute (Act March 14, 1889) does just that which is criticised in such unsparing language in the Michigan and Wisconsin cases. It gives a weapon, and a powerful one, to the plaintiff, which it withholds from the defendant. If plaintiff is successful, he obtains his attorney’s fee. If defendant is victorious, he does not. The parties áre not equal before the law. Defendant must buy his right to defend by submitting to the laibility of paying plaintiff’s attorneys’ fees. The attorney’s fee is not like the costs of the case. If defendant prevailed, he could recover his costs of the action against plaintiff, but he could not recover the attorney’s. fee, as could plaintiff, under the statute. The statute absolutely takes from defendant, and gives to plaintiff, that which defendant could never recover from' plaintiff if the result of the action were favorable to defendant. When the Constitution says: “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character, and that right and justice shall be administered without sale, denial, or delay,” these words are not vain declamation. Courts of justice are not equally open to every person, if the defendant, in every lawsuit of a certain character, must come into court knowing that his adversary, if victorious, may throw a heavy burden upon him, and that he cannot, if successful, east a similar burden upon his opponent.
It is true that these attorney fees have been sustained by the Supreme Court of California in cases which respondent has cited and in many others. But, in the cases which I have examined, the constitutionality of the law has not been discussed or called to the attention of the court, and I am not aware that such constitutionality has been sustained by that court upon consideration. But under the provisions of our Constitution, and the matter being directly presented for determination, I *354am of opinion that the Act of March 14, 1889, is unconstitutional and void, as above indicated.
I am of opinion that the judgment should be modified by striking out the attorney’s fee, and, as so modified, should be affirmed.
Affirmed.