
    Hannibal Rankin, Appellee, v. Robert Rankin et al. (The Monarch Portland Cement Company, Appellant).
    
    No. 17,556.
    SYLLABUS BY THE COURT.
    1. Mechanic’s Lien — Statement—Subcontractor—Laborer. The lien of a subcontractor or of an artisan or laborer employed by a contractor can not be defeated because of payments made by the owner to the contractor within the time fixed by statute for the filing of a statement for a lien by the subcontractor, artisan, or laborer, nor is it material that such claimant fails to state the amount due from the owner to the contractor at the time the lien is claimed.
    2. - Same. Nor will the lien of one who performed labor for a contractor at. an agreed compensation per day be defeated by the fact that in his statement he also designated himself as a subcontractor and stated that his work was done under a subcontract.
    3. - Sa/me. The fact that both designations were used in the statement for lien and in the petition of claimant could not have misled the defendant to his prejudice, nor did it afford ground for the contention that there was a material variance between the pleadings and the proof.
    Appeal from Allen district court.
    Opinion filed April 6, 1912.
    Affirmed.
    
      Frederick G. Apt, and Charles H. Apt, for the appellant.
    
    
      La Verne Orton, and N. E. McNeill, for the appellee..
   The opinion of the court was delivered by

Johnston, C. J.:

This action was brought to re-re-leo ver $178 and to foreclose a mechanic’s lien. De-pendant Robert Rankin and the appellee, Hannibal. ¡Rankin, are father and son. Both were plasterers by ¡trade and they worked together. About April 7, 1909,. ¡Robert Rankin entered into an agreement with the-Monarch Portland Cement Company to do plastering |ipon the buildings at the cement plant. The price was. agreed upon, and as the work proceeded payments were made from time to time to Robert Rankin, and at the date of discharge, September 2, 1909, he was paid in full for all work done. During this time Hannibal Rankin, the appellee, worked with his father and some ■of the checks given by the cement company to Robert Rankin in payment for work done were delivered to and indorsed by Hannibal. At the time the work was being done Hannibal lived with his father. Robert Rankin stated that he had paid Hannibal $9.50 at one time and $26.50 at another, and Hannibal testified that he had received a number of checks drawn to his father and that he had indorsed his father’s name thereon, who could not write, for. the purpose, of getting them cashed.

On October 11, 1909, Hannibal Rankin filed a mechanic’s lien and served proper notice. The action was begun November 5, 1909, praying judgment against both Robert Rankin and the cement company and for a foreclosure of the alleged mechanic’s lien. The answer contained a denial and a plea of payment on the part of the cement company. Robert Rankin did not answer or otherwise contest. At a trial which was had without a jury appellant made an objection to the introduction of any evidence on the ground that the petition did not state a cause of action, but it was] -overruled, and a demurrer to appellee’s testimony was also overruled. The court rendered judgment finding that Robert Rankin owed Hannibal Rankin $174 ano foreclosing the mechanic’s lien, from which judgmenl this appeal is taken.

The point first .made, that there was no allegatioi in the petition of a contract between the company ant the original contractor, is not good. It is expressly .alleged that the contractor entered into an agreemen with the company to plaster its buildings at twent; cents per square yard for outside work and ten cent per square yard for inside work, and that the cor tractor continued to work under the agreement to a stated time. The failure to state that a certain sum was due to the contractor from the company when the work ceased is not material. A subcontractor or laborer is given a direct lien.' His right rests upon the statute rather than on a relation of privity with the owner, and it is not lost by the fact that payments have been made by the owner to the contractor. The only limit in that respect is that claimants can not obtain liens in excess of the price fixed in the contract with the owner. (Civ. Code, § 651; Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236; Fossett v. Lumber Co., 76 Kan. 428, 92 Pac. 833.) Appellee specifically alleged that under an agreement with the contractor he had worked sixty days on the company’s buildings at the rate of $3.50 per day, thereby earning $210, on which he had received payments amounting to $36, leaving a balance of $174 due him from the contractor. A lien was filed in due time, and the owner can not escape liability to appellee by the fact that he may have already paid the contractor for the improvements. There was no real controversy but what the lien claimed by appellee was less than the amount due the contractor for the entire work done under the contract with the owner. Although criticized, the lien and accompanying notice which were served on the company are in substantial compliance with the requirements of the statute. In the statement and petition appellee designates himself as a laborer and subcontractor, and he appears to have used the designations interchangeably in both documents. It is stated that the labor was performed under a subcontract with the contractor, naming the owner and contractor, the date when the last labor was performed on the contract, the times when appellee did the work and the compensation he was to receive, and included in this itemized statement was the amount he had already received from the contractor and the amount due from him. ' These recitals, as well as a complete description of the real estate upon which the lien was claimed, were duly verified. The notice' of the lien was served, and attached to it was a copy of the statement filed which fully acquainted the company with the claim for a lien.

But it is contended that appellee did not show definitely the class to which he belonged — did not show clearly by his petition or lien whether he was claiming as a laborer or as a subcontractor. There is no room for doubt as to his relation to the owner and contractor or his right in the premises. He stated that he performed labor under a contract with the contractor. His was a claim for labor furnished to a contractor and is therefore a labor lien. Although having been furnished under a contract it is in a sense a subcontract. Strictly speaking, a subcontractor is one who takes from the contractor a specified part of the work, but a day laborer who works under an agreement with ■ the contractor is in one view a subcontractor. The statute provides that “any person who' shall furnish any such material or perform such labor under a subcontract with the contractor, or as an artisan or day laborer in the employ of such contractor, may obtain a lien upon such land,” etc. (Civ. Code, § 651; see, also, Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236.) Whatever may be the proper classification of the ap-pellee, it is clear that no one could have been misled by his statements in either the lien or the petition. In both he alleged that he performed labor by the day under a contract with the contractor, and if he had followed this statement with another that he claimed a lien as a subcontractor it would not have impaired the validity of the lien, and proof that he worked for the contractor' as an artisan or day laborer could not have been regarded as a variance. Whether regarded as one or the other the proof would necessarily be the same, and, besides, no variance is to be deemed material unless it has actually misled the opposing party to his prejudice. (Civ. Code, § 134.)

A question is raised as to the age of appellee when the work was done, but the evidence, although somewhat obscure, is sufficient to uphold the finding included in the general verdict that he had reached majority when the services were performed and was entitled to recover compensation for them.

The judgment is affirmed.  