dissenting.
This- action involves a controversy between the owner, George W. Mullins, and a sub-contractor, John J. Alessandrini, who • furnished labor and material used in the construction of a building.
The owner made a contract with Gline Brothers, whereby it was agreed that the owner would pay Cline Brothers $22,000 for the erection of a hotel building according to plans and specifications. The Cline brother's informed Alessandrini, of Charleston, West Virginia, that they were the general contractors for the construction of the building and asked him to submit a bid for material and labor necessary to .install terrazo floors and bases. Alessandrini rs bid for this material and work was accepted by the general contractor. According to this contract between the general contractor and the subcontractor, the material was furnished and the work performed to the satisfaction of all parties involved. These conceded facts establish the contractual relations between the owner and the g-eneral contractor, and between the g-eneral contractor and the sub-contractor, but they do not establish any contractual- relations between the owner and the sub-contractor.
In Coleman v. Pearman, 159 Va. 72, 79, 165 S. E. 371, we said: “Laborers and materialmen who are unwilling to extend credit to a general contractor have three courses, or methods, open to them to obtain additional security for their claims out of the funds due, or to become dué, under the building contract: (1) By taking the steps prescribed by section 6429a. of the Code of 1930 to fasten personal responsibility upon the owner; (2) by filing separate-and independent-liens under Code, section 6428; (3)'by taking advantage of a lien perfected by the general contractor. Whichever method is followed, written notice to the owner of the amount and character of the -claim is a prerequisite to the perfection of the lien or to fasten personal responsibiltiy upon the owner.”
*79The sub-contractor failed to take any one of the steps enumerated to impose liability upon the owner. He gave the owner no notice, written or otherwise, of the amount and character of his claim.
The majority opinion cites three separate and distinct fragments of evidence upon which its conclusion, imposing liability upon the owner, is based. These are: (1) An oral statement made by the general contractor to the sub-contractor; (2) payment by the owner to other creditors of the general contractor; (3) the subcontractor’s instruction to his workmen, and an oral promise made to the workmen by the owner. These fragments of evidence, whether considered separately or together, are not sufficient, in my opinion, to impose liability upon the owner.
Plaintiff himself testified that one of the Cline brothers, when requesting his bid, told him that the owner would pay for the work and material. No person is legally bound by the statement of a third party unless such third party is duly authorized to speak for such person. The mere fact that Cline told Alessandrini that the owner would pay for the work and material does not prove, or tend to prove, that Cline was acting as Mullins’ agent. An independent contractor is in no sense an agent of the person for whom he has agreed to erect a building. No contention is made, nor any semblance of proof introduced to establish any real or apparent authority in either of the Cline brothers to represent Mullins as his agent. The plaintiff testified that Cline told him that he was the general contractor and Mullins was the owner. This was sufficient to put him on notice that Cline was not authorized to represent the owner.
The mere fact that the owner, under circumstances not disclosed by the record, agreed' to pay and did pay other persons, who furnished labor or material used in the construction of the building, is not evidence tending to prove that the owner is liable to this plaintiff.
*80The statute, sec. 6432, provides: “If the owner is compelled to complete his building, structure, or railroad, or any part thereof undertaken by a general contractor in consequence of the failure or refusal of the general contractor to do so, the amount expended by the owner for such completion shall have priority over all mechanics’ liens which have been or may be placed on such building, structure, or railroad by such general contractor, a sub-contractor under him, or any person furnishing labor or materials to either of them.”
The fact that the owner took over a part of the conr struction of the building did not, of itself, render the owner personally liable to sub-contractors of the general contractor.
Alessandrini concedes, in his own testimony, that he had no communication with Mullins, direct or indirect, from the- time he submitted his bid to Cline Brothers until three hours before the work was completed. He said that he instructed his workmen not to begin work on the premises until they had received assurance from Mullins that he would pay for the labor, and material. His workmen testified that they received these instructions but that they did not ask Mullins about payment when they began work on February 17, and that they so reported to their employer. Alessandrini, then, with full knowledge .of the fact that • Mullins had made no promise to him or to his men to pay for labor and material furnished by him according to his agreement with the general contractor, permitted his workmen to complete the undertaking. Mullins denied that he made any promise to the workmen. They, however, testified that he did. Joe Cary, one of the workmen, said that, between 7:30 and 8:00 o ’clock on March 2, while he was polishing the floors, Mullins came into the .building. He then stopped the polishing machine, and, as soon as Mullins said “that- his pay would be ready for him when the work was completed, he.pressed the (starter) button and went on and finished the work” by 11:00 o’clock of that day.
*81This evidence conclusively shows that the entire work was completed before there was any communication, direct or indirect, between Alessandrini and Mullins.
Plaintiff failed to prove that the owner knew the amount of the bid he submitted to the general contractor. The workmen did not claim to have told Mullins the amount of the bid or the value of the work. The promise of Mullins, as stated by the workmen, was not to pay a definite sum of money, but simply “to pay for this work”. Alessandrini did not testify that the owner promised to pay any definite sum. He alleged, in his notice of motion, that “the prices charged by plaintiff for said work and material are the usual and prevailing prices for such work and material.”
I have searched .this record in vain to find even a scintilla of legal evidence tending to prove that Mullins ’ obligation to the sub-contractor was “an original independent undertaking on the part of the defendant to pay for the work done by the plaintiff.”
Judge Kelly, in Maddux v. Buchanan, 121 Va. 102, 107, 92 S. E. 830, 831, said: “Laborers and materialmen are favored by the statute, but not to the extent of requiring the owner of property to pay the same bills twice, once to the builder with whom he has contracted, and again to parties with whom he has no contractual relations. Our present mechanic’s lien laws deal fairly with both the owner and the sub-contractor, requiring the owner, after notice, to withhold from the general contractor enough to pay the sub-contractor, provided however, ‘the same does not exceed the sum in .which the owner is indebted to. the general contractor at the time the notice is given, or may thereafter become indebted by virtue of his contract with said general contractor.’ (Code, secs. 2477, 2479.) * * * . The statute was designed to protect sub-contractors, and creates a liability which; would not otherwise exist, but the terms must be met before its benefits can be enjoyed. In other words, as this court has said in former decisions, ‘the owner is under *82no obligation to protect the interest of the snb-contractor, except where the latter has complied with the law and thus placed himself in a position to demand protection from the owner.’ (Schrieber v. Citizens’ Bank of Norfolk, 99 Va. 257, 262, 38 S. E. 134, 135; University of Va. v. Snyder, 100 Va. 567, 581, 42 S. E. 337; Steigleder & Son v. Allen, 113 Va. 686, 691, 75 S. E. 191.)”
Plaintiff did not perfect a mechanic’s lien, which doubtless, under the circumstances, would have been worthless to him; nor did he attempt to fasten personal liability upon the owner, in the method provided by statute. His only contention is that he extended credit upon “an independent undertaking” made to him by the owner. The only proof of such “an independent undertaking” is an alleged promise made by the owner after all the materials had been delivered and installed. Credit is usually extended before the delivery of goods or the performance of work, not after these are accomplished facts.
Additional proof of the real party to whom plaintiff extended credit is found in the testimony of the owner, as follows; “after the floor work was done, Joe Cary and W. M. Smith, employees of plaintiff, came to him (George W. Mullins) and presented an order to owner from Cline directing owner to pay plaintiff, and asked him to pay for the floor job, but that he advised them that the contractors, Cline Bros., were due nothing on their contract, and he refused to pay for the work and materials that went into the floor job.” It is significant that neither Joe Cary nor W. M. Smith denied that after the completion of the work, they requested and obtained an order from the general contractor requesting the owner to pay the amount due by him to the sub-contractor.
This court held, in Hooff v. Paine, 172 Va. 481, 2 S. E. (2d) 313, that a written promise made by an owner to a sub-contractor and executed after the work had been completed, was void because such promise was not *83supported by a valuable consideration. While I did not agree with the majority of this court in so holding, as evidenced by my dissenting opinion in that case, I cannot reconcile the conclusion' of the majority in this case with the reasons set forth in the opinion in that case.
The alleged promise relied upon in the instant case was not communicated to the sub-contractor until after the material had been furnished and the work completed, and after the owner had declined to honor an order for payment given to the sub-contractor by the general contractor.
For these reasons I think the judgment of the trial court should be affirmed;
Spratley, J., concurs in this dissent.