The court erred in excluding the testimony of the witness McHeal, offered by the defendants below. Admitting that, as partner with Gunn & Gates, he was liable to Blanchard for this debt, then his interest was against the defendants in this suit; for, if the suit was maintained so as to enforce its collection out of this specific property, he became thereby released from his obligation, as partner, to pay it. If the complainant failed to maintain this suit, he could turn round and sue McHeal, as partner, and collect it from him, the same as if he had never proceeded to enforce his supposed lien against this property. A decree against Blanchard, in this suit, would be no evidence that the debt was not due him from the firm, hut it would only establish the fact that he had no specific lien upon this property, for lumber furnished in the erection of the building upon it. The testimony should have been admitted.
The court also erred in instructions given for the complainant, and in refusing instructions asked by the defendants. This error originated in a misapprehension of the statute under which this suit was brought. The first section of that act is this : “ Any person who shall, by contract with the owner of any piece of land or town lot, furnish labor or materials for erecting any building, or the appurtenance of any building, on such land or town lot, shall have a lien upon the whole tract or town lot, in the manner herein provided, for the amount due to him for such labor or materials.” The second section proceeds : “ The lien shall extend to all work done or materials furnished, under the provisions of the contract, whether the kind or quality of the work or amount to be paid be specified or not.” In the instructions the court substantially construed this law as giving the lien whenever a contract has been made for the furnishing of materials to be put in a building on the lot; and in pursuance of such contract, materials have been furnished, whether those materials, thus furnished, were actually used in the erection of such building or not. We do not so understand this law. The legislature only intended to.give this lien for the materials actually used in, or the labor really bestowed upon, the building situated upon the premises against which the lien is sought to be established. The object of the law was to allow the party to pursue the thing actually furnished. Two things must concur to create the lien—first, the contract; and second, the furnishing of the material actually used. Suppose, in this case, there was a contract made, and, in pursuance thereof, the lumber was furnished, which was found to be unsuitable for the building, and was, consequently, sold to other parties, and never put in the building at all, but the lumber actually used was furnished by another, under another contract. The statute certainly gives a lien to the one who furnished the lumber which was used in the building, and to the workmen who did the work in the erection of the building, and yet, according to the construction given by the court below, the party who made the first contract, and furnished lumber never used upon the premises, may also have a lien upon the same building and premises. Mot for anything which he has done to enhance their value, nor by reason of any incumbrance upon them, but because the owner of the premises had purchased lumber for the purpose of using it on the premises, but which he never did so use.
Under the construction given to this law, who has the prior líen ? The party who furnished the materials with which the building was actually erected, or the one whose materials were not put in the house ? The legislature intended to create no such conflicting claims. The very essence of the lien created by this statute is the furnishing the materials of which the building is constructed. The act continues in the party furnishing the materials of which the building is erected, a quasi property in those materials, and others with which it has been commingled in the building, and allows him to follow it, thus transformed, for the purpose of getting his pay. If materials are furnished me for the purpose of being put upon lot one, and I put them on a building in lot two, the lien is upon the last lot, where they were actually used, and not on the first. There is no lien upon the premises till the material is put upon them. Under this construction, if a man goes to Chicago and buys lumber to build a house on a particular lot in Chillicothe, and in tfra/nsitu, the lumber is burned up, the vendor shall have his lien upon the lot for the amount so furnished. Such is not the true- construction of this law. The legislature never so intended.
The decree of the circuit court must be reversed and the suit remanded.
Decree reversed.