
    Dunn & Witt et al. v. Rankin & Co.
    1. Under the statute to create a lien in favor of mechanics and others, the claim of a sub-contractor against the owner of the structure is limited to the work and materials furnished in performing a particular contract. between the owner and contractor in relation to such structure; also to. the amount unpaid on such contract at the time he delivers to the owner his attested account against the contractor for such work and materials.
    2. Where independent jobs are let under separate contracts, though between the same owner and contractor, the liens of the sub-contractors are respectively confined to the amount unpaid on the particular contract each one aided the contractor to perform.
    3. When a contract for a structure provides for changes in the plans and specifications, and extra work is done in completing the structure without a new contract, a sub-contractor of any part of the job may perfect a lien on the amount due from the owner to the contractor for such extra work.
    i. When a sub-contractor seeks a lien under the statute against a corporation as the owner, the delivery of his attested account against the contractor to the agent or officer of the corporation, who is duly authorized to enter into the contract, under which the job is done, in his own name, and to account to the contractor and sub-contractor in accordance with their respective rights, is sufficient notice to fix the lien against the corporation.
    Error to the Superior Court of Cincinnati.
    June 12, 1869, George Bearly entered into a contract with the city of Cincinnati, acting by William E. Hurlbut, clerk of the board of education, whereby Bearly was to construct, by August 20, 1870, a school-house for the sum of $81,000.
    The work was to be done under the direction of the superintendent of school buildings, in accordance with plans and specifications furnished to Bearly, and in pursuance to which he made the contract.
    Bearly was to be paid as the work progressed, except that twenty per cent, of the value of the work was to be reserved until the completion of the house. The contract contained, among others, the following provisions :
    “ Moreover, it is understood and agreed that if any changes in said plans and specifications, and the work corresponding thereto, are considered advisable or necessary, the same may be done, and shall be executed by said Bearly, at such price as may be agreed upon between him and the superintendent of buildings; but the same shall not be made without the consent of the building committee of said board, nor unless a memorandum of said changes and the price thereof be first made and signed by said Bearly and said superintendent.
    “ If, however, any of the sub-contractors of said work shall, at any time during the progress of said work, give notice to said board that they have not received pay for their estimated portion of said work, according to the terms of their agreement with said Bearly, then in such case it shall be lawful for the clerk of said board to settle directly with such sub-contractors; their receipts for such direct payments to be taken as absolute payment and satisfaction for so much of the contract price of said house.
    “ It is understood that if any changes are made in said work, as above provided for, the above named contract price is to be increased or diminished, according to the agreement entered into as to such changes between said Bearly and said superintendent of buildings as shown by their memoranda of agreement.”
    The school-house was completed, and accepted by the' board of education on the 15th day of August, 1870; and, on the same day, the balance of the contract price, $81,000, was paid over to Bearly.
    On the 18th clay of August, 1870, Rankin & Co., subcontractors, filed their attested account against Bearly, in the office of William E. Hurlbut, clerk of the board of education, who was then absent from the city, and did not return until the 22d of August. .
    August 22cl, Bunn & Witt, sub-contractors on the schoolhouse, filed their attested account against Bearly with the clerk of the board; and in the evening, the claims of Rankin & Co. and Dunn & Witt were presented to the board of education. Finnegan & Son filed their attested account with the clerk of the board, August 26th.
    Each of the above named accounts were for work done and materials furnished on the school-house, according to the original plans and specifications and embraced within the contract price of $81,000.
    On the 27th day of August, 1870, the Greenlees & Ransom Co. filed its attested account with the clerk of the board of education for work and material furnished for a frame privy, which did not appear on the original plans, and was never made any part thereof, and also its attested account for work and material in the school-house itself, which said work and material was over and above all work and material required in the completion of the original contract.
    After August 15, 1870, there remained in the hands of the city $1,377, due for this privy and extras in the schoolhouse proper ; and the amount so due was for work and materials furnished independent of the work and materials included in the contract for $81,000.
    On September 1, 1870, Rankin & Co. filed their petition in the Superior Court of Cincinnati against the city, alleging that they were sub-contractors upon the school-house; that there was due to them from Bearly the sum of ■$3,313.23 ; that they had filed their account with the city as aforesaid ; and asked judgment against the city for the amount in its hands due to Bearly.
    
      The city filed an affidavit, stating that Dunn & Witt, Greenlees & Ransom Co., Finnegan & Son, Leonard .Swartz, and George Bearly claimed an interest in said money, and by order of court they were made parties and required to set up or relinquish their respective claims. Subsequently, Edwin Long was made party defendant, and the answers and cross-petitions of Dunn & Witt, Greenlees & Ransom Co., Edwin’Long, and Finnegan & Son, were filed in the case, also that of the city relating to the claim of Swartz.
    The. amounts claimed were all admitted to be due and correct in amount; and it was admitted by all parties that the claims of Greenlees & Ransom Co. and Edwin Long were for work and materials not included in the original plans and specifications. ■ it was also admitted that the money left in the hands of the city at the time the first notice was filed was all due for work and material not provided for in the original plans and specifications.
    The original plans and specifications provided for a brick privy, to be erected on the west side of the school-house, and provided for no other privy.
    The city owned a lot on the east side of the school-house, which was subject to a leasehold interest at the 'time the contract for building the school-house was executed, but subsequently it purchased the leasehold; and thereafter, by the consent of Bearly, the brick privy he had contracted for was built on the east instead of the west side of the school-house, and a frame privy contracted for, to be built for the sum of $463 by said Bearly, on the east side of the school-house, was located on the west side of the schoolhouse, where the brick privy was originally to have been placed.
    The Greenlees & Ransom Co. were the sub-contractors who furnished the wood-work for this frame privy, and at an agreed price of $223.10. Edwin Long did the painting thereon, which amounted to $35. The frame privy was built according to plans drawn and specifications made by the superintendent of school buildings, and made the basis of a new contract a year after the original contract for building school-house and brick privy had been executed.
    This ease came on for trial in April, 1871, at special term, and was reserved to general term. In general térm, the court ordered all the money in the hands of -the city and due Bearly, less costs of suit and the claim of Swartz, to be paid to Rankin & Co., to which Dunn & Witt, G-reenless & Ransom Co., and Edwin Long excepted. They also filed a motion for a new trial, which was overruled and exceptions taken.
    Thereupon they filed their petition in error in the Supreme Court to reverse the judgment of the Superior Court, on the ground that the judgment of the court was against the law and the evidence.
    
      Hoadly § Johnson, for Dunn & Witt:
    We claim that the court below erred in holding that the notice of Rankin & Co. was served upon the city of Cincinnati earlier than‘the notice which we served upon the city, and also in ordering that all the money in the hands of the city at the time of said service should be paid to Rankin & Co.
    We claim that actual service of our notice upon the city was made at the same time as the notice of Rankin & Co.; and that, therefore, we were'entitled to pro rata distribution with Rankin & Co.
    We also claim that even though it should be found that the notice of Rankin & Co. was actually served upon the city prior to the service of-our notice, yet the same principle of law prevails as to sub-contractors which has been declared as to contractors, viz : that as between themselves there is no priority, and hence we were entitled to pro rata distribution with Rankin & Co.
    We claim that a service of notice upon the clerk of the board of education, or a filing of notice in the office of the clerk, is not such a sei’vice as would affect the money due to Bearly.
    If the court should hold that the notice of Rankin & Co was, in contemplation of law, filed before the notice of Dunn & "Witt, then we claim that, as between sub-contractors, there is no priority, and their claims should be paid pro rata, if there should be insufficient money to pay them in full.
    The law itself is silent on this subject. Nothing is said, either, as to the liens of contractors in reference to priority. But this court has held in the case of Choteau et al. v. Thompson et al., 2 Ohio St. 114, that as between lienholders there is no priority, and the reason given is, that the work, and labor, and materials of all, are contributed to a common purpose ; the work of each assists to make the value of the whole.
    The same reason exists as to sub-contractors: their work makes up the work of the contractor; the work of one is no more necessary than the work of the others. Then why should one be paid and others left unpaid ? Because he files his notice first ? So one contractor may file his notice long before another contractor, or even before the work of the other contractors is commenced, yet he shall take no advantage thereby. So it should he with sub-contractors; their rights are similar — their equities are equal — their relations are identical with those of contractors. The law of last winter recognizes this equity, and provides that sub-contractors shall fare alike under the lien law for mechanics and others.
    The Supreme Court has never decided the question as to the rights of sub-contractors between themselves in a case like this. The Superior Court of Cincinnati, in 1856, in the case of McCollum & Co. v. Richardson et al., 2 Handy, 274, in general term, held that the first in time was first in right. But it is difficult to see why. any different principle should be enforced as to sub-contractors, than that applied to contractors; and the opinion .of the court in that case does not seem to us to lessen the difficulty, or justify the difference held in that case. ' In cases of attachment, there seems good reason why the first served should take precedence; but as-between contractors and sub-contractors, their rights and equities should not depend upon priority of time' only in asserting their claims. If that were the rule, the contractor or sub-contractor who first fiñished his work on a building might “ gobble up ” all the money due on a building, or the proceeds of its sale, while the last contractor' — the one who completed the building, and without whose services the building would be of little value — might be able to get nothing. The principle announced in Choteau et al. v. Thompson is an equitable -and just one, and necessary to protect the rights of contractors. The same reason for the rale exists as to eub-contraetors, and should be followed by the establishment of the same rule as between them.
    There is one other view of the matter to be urged in this connection, and that is derived from the contract between the city of Cincinnati and Bearly.
    By a provision of the contract the sub-contractors were provided with the means of having their claims paid in full, if notice had been given in time. This puts the subcontractors on the same footing as the contractor; their receipts were as good as the contractor’s, and the same rule would be applied to them as to different contractors; and there could have been no priority between the several sub-contractors.
    
      Meuben Tyler, for Greenlees & Ransom Co. and Edwin Long:
    I. Neither the plaintiffs, Rankin & Co., nor any other sub•contractor of George Bearly, have any claim to any part of the money in the hands of the city and due Bearly, unless they were sub-contractors on the specific work for which said money was due. 1 S. & C. 883.
    II. No part of the money remaining in the hands of the city, and due Bearly on August 18th, 1870, when Rankin & Co. filed their notice, was due as consideration for any work or material on which Rankin & Co., Dunn & Witt, or Finnegan & Son were sub-contractors.
    The truth of this proposition, so far as the evidence goes, is unquestioned; but Rankin & Co. and Dunn & "Witt claim, and the Superior Court of Cincinnati held, that the original contract with Bearly must be so construed that all the work done by Bearly was included in and covered by the said original contract; whereas Greenlees & Ransom Co. and Edwin Long claimed, and still insist, that a frame privy, built under new plans and by virtue of a new contract, and contracted to be put on land, the possession of which the city did not have when said original contract was made, could not and can not be included in said original contract; nor can said original contract (as we claim), be construed to embrace any extra work, which was not included by the original plans and specifications; and not necessary to the completion of the house in accordance therewith, for the sum of $81,000.
    III. Greenlees & Ransom Co. and Edwin Long are the only parties who have any claim under and by virtue of the lien law upon the money remaining in the hands of the city, and due to Bearly after the 15th day of August, 1870.
    This proposition is based on the evidence that Greenlees & Ransom Co. and Edwin Long were sub-contractors, and did use all the means the law requires for securing pay for the work and material furnished for said privy and extra work; and that none of the other parties contributed thereto at all; and also follows as the logical and inevitable sequence of their view of the preceding propositions.
    
      JE). L. DeCamp, for defendants in error:
    I. Was the money due Bearly from the city due him upon his contract:
    If it is not, then this action must fail, and all the parties have mistaken their remedy.
    The whole proceeding is based on the assumption that the ñrouey is duo Bearly on the contract with the city, on which the parties are sub-contractors. It is therefore a contest between sub-contractors — a suit, not against the contractor as an individual seeking personal judgment, but a special remedy. A statutory remedy must be strictly pursued. One of the indispensable requisites to entitle a party to relief under this statute, is that he file with the owner an attested account of the amount and value of the labor performed.
    ¥e claim that the contract must be taken as a whole. It is clear and unambiguous, and therefore there is no room for the admissibility of parol testimony. The contract speaks for itself and needs no interpreter. All its terms are clear and distinct, and there is no room for doubt in the minds of the parties to the contract. It recognizes the clerk of the board of education as the proper medium between sub-contractors and the city, and as the authorized agent of the city herself in the payment of money. It directs the manner in which everything shall be done, the time within which it shall be done, provides for all changes and alterations which shall suggest themselves from time to time as the work progresses, and specifies the manner in which the agreed price of $81,000 shall be increased or diminished according to the changes which shall be made. Can language be plainer, and is not the conclusion irresistible, that this contract was intended to cover all the work done upon the building and its various appointments, whether such work be extra work or not ? Is not the plain meaning of this contract that the contractor was to go on and build the house, according to the plans and specifications, for the sum of $81,000, but proyiding that alterations should be made in the plans and specifications according to the judgment of the city; and if the work was thereby increased, that the contractor should receive the amount of such extra work in addition to the stated sum of $81,000 — thus covering all the work, whether done according to the plans and specifications as originally drawn, or modified according to the judgment of the city? This interpretation of the contract is so plain that it seems a useless task to attempt to argue it further.
    Such being a fair interpretation of the contract, does not an alteration like that in the privy come plainly within its terms ? According to the testimony in the case, it was originally intended that a brick privy should be placed upon the original lot; but it was found afterward to be impracticable on account of the nature of the ground, and a frame privy was put up on the very spot on which it was intended to have placed.the brick privy, and the brick privy was put up on an adjoining lot subsequently purchased. Can it be said with any force that this was not, in the language of the contract, “ a change in said plans and specifications and the work corresponding thereto, considered advisable or necessary ?
    The contract itself is sufficient, without any thing else, to support the assertion that the clerk of the board of education was the duly authorized agent of the city in this matter. He is specially designated in the contract itself as the medium of communication between the city and subcontractors. The object and intention, as well as the effect of filing an attested account by a sub-contractor, was to stop the payment of the money. No money could be paid out by the city treasurer except on a warrant of the city auditor, and the city auditor would not and could not draw his warrant except on the certificate of the clerk of the board of education. Here, then, is the only medium through which any one could draw money from the city treasury on account of the school fund. Without the certificate of the clerk of the board of education, not one cent could be appropriated to the payment of any claim, however just. Disney’s Laws and Ordinances, sec. 8, p. 775.
    Service on the authorized agent of a corporation is service on the corporation. Angelí & Ames on Corp., sec. 305, and authorities cited.
   Day, J.

It is conceded that the city of Cincinnati is indebted to George Bearly, as contractor for work and materials in erecting the building mentioned, in the sum of $1,377. The amount so due to him is claimed by his subcontractors, under the provisions of the “ act to create a lien in favor of mechanics and others in certain cases ” (S. & C. 833), and Bearly admits that their claims, as against him, are just and due; the controversy, therefore, relates solely to the distribution of the' fund between them.

The amount due to Rankin & Co. from Bearly is greater than the amount due tó him from the city. They claim that they filed their attested account with the city before any of the other sub-contractors, which gives them the priority, and entitles them to the whole fund.

Dunn & Witt.claim that they filed their attested account with the city at the same time with Rankin & Co., and so are entitled to their proportionate share of the fund with them, to the exclusion of the other sub-contractors who filed their attested accounts at a later date.

The Greenlees & Ransom Co. and Edwin Long claim they are entitled to the whole fund, in proportion to their several accounts, on the ground that the amount due to Bearly from the city is for extra work and materials, not embraced in the school-house contract, a part of which extra work and materials constitute the whole amount of their accounts; while those of the other sub-contractors are included in the specifications and contract for building the school-house.

The first question to be considered, then, is, whether the fund in dispute arises upon one contract or different contracts between the owner and contractor; for, under the statute, the claim of the sub-contractor against the owner of the structure is, by fair’construction, limited to the work and materials furnished in performing a particular contract between the owner and contractor; also to the amount due on said contract at the time he delivers to the owner his attested account against the contractor for such woi’k and materials. . If there be distinct jobs of the kinds enumerated in the statute, under separate contracts, though under contracts between the same owner and contractor, the liens of the sub-contractors are respectively confined to the amount due on the contract each one aided the contractor to perform; the same as it would be if the owner had contracted each job to a different contractor; for the policy of the statute is not to give a general lien to the sub-contractor, but to give him a right to the fund to which his own labor or materials have contributed.

In June, 1869, the city, through its duly authorized agents, contracted with Bearly to build a school-house for $81,000, in accordance with detailed plans and specifications, including a brick privy. About a year afterward, it was determined to build another privy, to be constructed of wood. This structure not being expressly included in the specifications or provisions of the school-house contract, new plans and specifications for this work were submitted to Bearly, who proposed to do it for $463. His proposition was accepted, and a contract was entered into with him accordingly.

It is claimed that inasmuch as “ changes ” in the “ plans and specifications,” which are made part of the original contract, are provided for in that instrument, this new structure is embraced therein, and must be regarded as erected under that contract. But the new privy was not a change in the original plans. It was a new building, and, although an appurtenance to the main edifice, it was a distinct and separate structure, erected under another contract than that of the other buildings, as much as it would have been had the new job been contracted for by another person. The amount agreed to be paid Bearly for the frame privy remains unpaid, and, in accordance with the principle already stated, his sub-contractors, to the extent their work and materials went into that structure, may acquire a lien thereon pursuant to the statute, while those who contributed ouly to the other building can not.

The balance of the amount in controversy is due to Bearly for extra work and materials that w,ent into the principal building, as to which there was no contract other than the original one, and this work may fairly be regarded as embraced in the “ changes ” provided for in that contract. A lien may therefore be acquired upon the balance so due by the sub-contractors who did work or furnished materials in performance of the original school-house contract, and including the extra work in completion thereof.

The Greenlees & Bansom Co. and Edwin Long were the only sub-contractors who did or furnished any thing toward the erection of the frame privy. The other parties, therefore, can acquire no lien, under the statute, to that part of the fund due for that structure; and that part of the amount due to the Greenlees & Bansom Co. and to Long, in excess of what is due to them for work and materials which went into the building erected under the new contract, falls into the same condition with that of the other sub-contractors.

The next question to be considered relates to the priorities between the sub-contractors upon that part of the fund due to Bearly upon the original contract. It is claimed that, as between sub-contractors, there is no priority. But it has been settled that, as the statute stood at the time this transaction arose, those first in time in delivering their attested accounts to the owner were prior in right. Copeland v. Manton, 22 Ohio St. 398.

We must then determine whose account was first delivered to the owner in compliance with the statute; and here the contest is only between Ransom & Co. and Bunn & Witt, for the notices of all the others were subsequent to theirs, and the priorities under the latter notices are not questioned.

All the notices were left at the office of the clerk of the board of education. Bankin & Co. left their notice or attested account at the office on the morning of the 18th of August, 1870. The clerk was then absent from the city, but the office was in the care of an employe, who attended to all matters that did not require the official action of the clerk. The clerk returned to the office in the morning of August 22, 1870, and Bunn & Witt deposited their claim in the office at five o’clock p. m. of that day. Both claims were read to the board of education in the evening of the. same day.

It is claimed, in behalf of Dunn & Witt, that neither party obtained any lien until the board of education was notified of their claims, and that their notices to the board being simultaneous, tliey are equal in right as to the fund in dispute. On the other hand, it is claimed, on behalf of Ransom & Co., that a lien was fixed thereon by their notice to the clerk of'the board, which they claim was prior to that of all others.

Without determining whether the leaving of an attested account at the office of the clerk was sufficient to create a claim against the city under the statute, we think that, under the circumstances of this case, it was sufficient for that purpose to deliver it to the clerk, for a corporation was the owner, and could know or act only through its duly constituted officers or agents. It is true the board of education was invested with general authority as to all matters appertaining to pnblic school buildings; but it appears that in this instance the clerk of the board was authorized by the board, with the concurrence of the city authorities, to enter into this contract in his own proper name, and was expressly authorized by the contract, on notice to the board by the sub-contractors, to settle with them directly all their claims against the contractor arising under the contract. Thus all the parties connected with the contract, under which these claims arise, recognize' the board of education, and its clerk as. the practical agencies to deal with in regard to any claim that may become due under the contract, and they agree upon the clerk of the board as the disbursing officer or agent under the contract for both the board and the city. He therefore became a proper agent of either corporation to receive the notices of the sub-contractors as the person standing in the position of the owner as to the amount due to Bearly under the contract. Notice to any other agency or officer of these corporations could not as effectually stop payment to the contractor, which is the first thing to be done to accomplish the purpose of the statute, — to secure the sub-contractor and at the same time protect the owner.

Undoubtedly, the claim of a sub-contractor can be charged upon the owner only in the way prescribed by the statute — by delivering his attested account against the contractor to the owner. But when the owner is a corporate on, the delivery of such account to the person whom the corporation has authorized to be its representative or active agency to act in the special matter arising under the contract upon which the claim is based, is a compliance with the statute; for such person or officer must be regarded as the proper medium for reaching the corporation, or as the one having its authority to receive such notice.

The court below found that, as matter of fact, the clerk received the attested account of Rankin & Oo. before that of any of the other sub-contractors was received. We can not say that finding was unwarranted by the evidence, and must therefore concur therein. It follows that Rankin & Co. have the prior right to that part of the fund due on the original contract; and, as the amount due them from Bearly is greater than the amouut due on that contract, that part of the fund will be exhausted in paying them.

The balance of the fund is due upon the contract for the frame privy. Upon this part of the fund, the Greenlees & Ransom Oo. and Edwin Long have the prior claim to the .amount that the work and materials in .their respective accounts went into that job. There is no specific lien upon the balance of the fund remaining due under this contract, •other than what has resulted from this suit; and, after pay ■ .ing the costs and the judgment in favor of Schwartz— which was not excepted to by the only party it affects— should be divided between all the sub-contractors not fully .paid, in proportion to the balance remaining due to each •of them after the applications before indicated.

It follows that the judgment in favor of Schwartz must ■be affirmed, and that in all other respects it must be reversed.

Judgment accordingly.

Scott, Chief Judge; Whitman, Weight, and Johnson, •JJ.,- concurred.  