Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
P. M. Bowler, Geo. A. Bartlett, and Geo. B. Thatcher, for Appellants.
H. R. Cooke, for Respondent.
By the Court, Coleman, J.:
This is an appeal from a judgment and decree of foreclosure of a mechanic's lien, entered in the district court in and for Nye County. Appellants, who were the owners of a certain lot, and a building situated thereon, in the town of Tonopah, entered into a contract with Kelleher & Kuhlman, on or about September 1, 1913, for the making of certain alterations and additions to the said building. Pursuant to the contract, the contractors were to furnish all materials necessary in the making of the alterations and additions. The respondent, the Verdi Lumber Company, furnished and delivered to the contractors, upon their request, at the property mentioned, certain lumber and other building material, which were used by the contractors in making the alterations and additions contemplated by the contact. The contractors having failed to pay for the lumber and material so purchased, the company filed it lien statement, and in due time brought this action to foreclose the same.
Section 1 of an act entitled An act to secure liens to mechanics and others, and to repeal all other acts in relation thereto, approved March 2, 1875 (Stats. 1875, c. 64), being section 2213 of the Revised Laws of 1912, reads:
Every person performing labor upon, or furnishing material of the value of five (5) dollars or more, to be used in the construction, alteration or repair of any building or other * * * structure, has a lien upon the same for the work or labor done or material furnished by each, respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent; * * * and every contractor, subcontractor, architect, builder, or other persons, having charge or control of any * * * or of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner, for the purposes of this chapter.
Section 9 of the same act reads as follows:
Every building or other improvement mentioned in section 1 of this act, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, or the intended construction, altertion or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situate thereon.
Several days after work had been commenced upon the property pursuant to the contract, a notice of non-liability, such as contemplated by said section 9, was posted upon the property by appellants.
Several reasons are urged why the judgment should be reversed; but, in the view which we take of the case, we deem it necessary to consider only one question, and that is, conceding that the notice of non-liability was posted in apt time, and in a conspicuous place, did it accomplish the purpose intended by it?
While appellants contend that they never became liable to respondent, because of the posting of the notice, respondent asserts that it was not the intention of the legislature that section 2221 should apply to a situation such as is here presented, upon the theory that, under section 2213, Kelleher & Kuhlman were the agents of appellants, and that the appellants were bound by the acts of their agents just as much as they would have been had they ordered the lumber and other supplies themselves, and that, if appellants had themselves ordered the materials, they could not have relieved the property from the liability by posting a notice of non-liability.
A clause similar to the last one in section 2213, supra, making the contractor, subcontractor, architect, builder, or other person having charge of the work, the agent of the owner, is embodied in the mechanic's lien statutes of many of the sates; and, so far as we have been able to find, the courts have uniformly given such language its plain and ordinary meaning, and have held that supplies and other materials ordered by persons in any of the named classes were proper to be secured by a lien, with the same force and effect as if ordered by the owner himself. In fact, the intention of the ...