delivered the opinion of this court.
This is a proceeding under the mechanics’ lien law of 1838, chap. 205, and its supplements.
The defendant contracted with a man named Wall for the building of a house in Baltimore, and Wall obtained a portion of the materials used in the house from the Messrs. Turner, the plaintiffs. At different times and at short intervals from the month of November 1846, up to the 20th September 1847, materials were furnished as alleged by the plaintiffs, and which are not denied by the defendant. No materials were again furnished after the 20th September until the 7th of February 1848, a period of nearly four months. At the last mentioned date, through the direction of a man named Conolly, who professed to act as Wall’s agent, certain other materials, amounting to $1.86, were obtained from theplaintiffs to be used as was alleged in the building, but which were not in fact used, though delivered at the house; the defendant objecting to their delivery, and insisting upon their being taken away, denying at the same time Wall’s right further to bind'him. By the contract between Wall and the defendant, the house was to be completed by the 1st of August 1847, but in fact it was not completed for more than a year *303afterwards. There is also testimony in the record going to show that in October 1847, the defendant had taken the management of the building into his own bands, and bad virtually terminated his contract with Wall. On the 5th of February 1848, two attachments were issued against Wall as an absconding debtor, upon which judgments of condemnation were entered, and on the 7th of the same month he applied for the benefit of the insolvent laws, having for a long time previous been embarrassed in his circumstances.
This appeal comes before us upon exceptions taken by the defendant below, to the refusal of Baltimore county court to grant two instructions prayed for by him, upon the aforegoing testimony. "We are now required to review the decision of the court below, and if necessary to correct it.
In the first prayer the court are asked to instruct the jury, “that the plaintiffs are not entitled to recover if the jury find that Jacob Wall was not the contractor, architect or builder of the building described in the proceedings, at the time when the materials charged by the plaintiffs on the 7th February 1848, were charged or furnished.”
If in point of fact the contract between Wall and the defendant was at an end, at the time the materials were last furnished, no lien or claim against the defendant or his property could result to the plaintiffs by virtue of the delivery on that day. Nor is any formal notice necessary to be given to those furnishing materials to the contractor, of the termination of the contract, provided bona fide, and in fact it is at an end. The party furnishing the materials has the duty imposed upon him by the act of Assembly, which was designed mainly, if n-ot exclusively, for his benefit, of seeing that he is dealing with the person who is actually the builder or contractor at the time the materials are furnished. If the materials were furnished by virtue of an express authority or direction from the owner of the building, there might be some reason for requiring some notice equally express revoking the authority or direction. But where the authority to charge and bind the owner, alone results from the contract between *304him and the builder, that authority must be taken ás having ceased as soon as the contract ceases. If it were otherwise there would be no protection for the owners of buildings against the acts of improvident and fraudulent contractors. It is hardly to be presumed that the lien law imposes upon the owner of a building the necessity of giving public notice-through the papers, of the termination of his contract with the builder, in order to protect him against the acts of the' latter: nor can it be contended that individual or personal notice to each material-man, or sub-contractor, is required,because in many cases it would be impossible for the owner to know who they were.
This law provides, that unless within sixty days after the materials have been furnished a notice be served upon the owner, setting forth the' claim for materials, &c., no lien for the same will accrue, and in case such notice is served, he may retain from the cost of such building, from the contractor, the amount which may be due the party giving such notice. After the lapse of sixty days from the termination of the contract, and the last materials had been furnished, the owner might well suppose himself free to settle with and pay off the contractor, and thus to surrender the indemnity which he might otherwise have retained in his hands against any elaim for materials. But if the termination of the contract is to constitute no protection for the owner against such claims as the one set up in this record, it would be impossible for him to know when his liability would cease.
This is not like the case of an ordinary agency, where the liability arises from an express or an implied authority from the party sought to be charged. Independent of the lien laws no responsibility could attach to the defendant for the materials in question, from the simple circumstances alone that they were purchased by his contractor and were used in his building. It is a liability created exclusively by act of Assembly, and not by the act of the party, and must rest solely upon the terms of the law, one of which is that there must be an active subsisting contract between the builder and *305the owner, before the latter can be made responsible for materials furnished to the former.
For the reasons expressed, we think the court erred in not granting the first instruction asked for by the defendant.
We are also of the opinion that the second instruction prayed for was improperly rejected. In that prayer the court was asked to say, “that if the jury find that the witness Conolly, in ordering the articles charged upon the 7th February 1848, colluded with the plaintiffs for the purpose of reviving their lien, which they had lost for the articles previously furnished by them, and that the articles so ordered by him were left on the street by the colored drayman, Under the circumstances mentioned in the testimony of the witnesses Sharer and Conolly, and were never used in the construction of the dwelling-house mentioned in the proceedings, then the plaintiffs are not entitled to recover.”
It was contended on the part of the plaintiffs, that the above prayer was erroneous, because it embraced several legal propositions, that if one of those propositions be wrong the whole prayer should be rejected, and that the question was improperly submitted to the jury to find whether the lime was used in the building or not, as it was no wise important whether it was used or not, provided it was sold and delivered for the building by the plaintiffs.
We do not regard this prayer as obnoxious to this objection. The copulative used, being in the conjunctive and not in the disjunctive, makes the prayer present but one entire proposition, though composed of several parts. It not only affirms that the materials were collusively furnished, but that they were so furnished against the protestations of the defendant, and that they were not used by him. It might well have been a question whether he would not have adopted this act of the plaintiffs, although the result of collusion with the witness, and thus made himself responsible, if he had not objected to the delivery of the articles, as he did, or if he had afterwards used them, or permitted them to be used, in his building. In order to protect himself against the alleged collusive conduct, *306(if such it was in fact,) it was necessary that he should not have used the lime on his building. The prayer does not put a case, as it seems to be treated by the counsel for the plaintiffs, of a bona fide delivery of materials for the building; for in such a case it is conceded, that it might have been immaterial whether they were used or not.
The court are of opinion further, that 'there was sufficient testimony in the record to warrant the submission of the question to the jury, whether there was collusion between the plaintiffs and the witness Conolly. They however express no opinion upon the weight of that testimony, but leave that to be determined by the jury, whose peculiar province it is to decide upon the facts in the ease.
The objection urged in argument by the plaintiffs’ counsel that the last piayer was erroneous, because it assumed the fact that materials had been furnished before the 7th February, is not tenable — it is, at least, not an objection which the plaintiffs would be permitted to make, because if it does assume a fact, it is one necessary to the support of their own case. »
Judgment reversed and procedendo awarded.