
    Mack v. The Degraff & Roberts Quarries et al.
    
      Sale of building materials — In another state and delivered in this state — Right of mechanics' lien — Law of inter-state contract.
    
    One, who, in another state, sells and delivers tó a principal contractor, materials to be transported by the latter to this state and used by him here in constructing a public improvement, is entitled to the same rights under the mechanics’ lien laws of this state, that one may assert who sells and delivers, within this state, materials to be thus used. To apply to such a transaction the mechanics’ lien laws of Ohio, is not giving to them an extra territorial operation.
    (Decided January 26, 1898.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error brought in the court of common pleas of Cuyahoga county, against the city of Cleveland, an action to recover a sum of money claimed to be due, on account of a paving contract, entered into between the city and J. L. Sterling & Son, the plaintiff’s action being founded on an assignment and transfer, from J. L. Sterling & Son to “The John Porter Company” and by that company to the plaintiff. The plaintiff recovered a judgment in the court of common pleas, which the cirquit court reversed, whereupon the cause was brought to this court to reverse the judgment of the circuit court. Such facts as are necessary to understand the question decided will be stated in the opinion.
    
      Gustav A. Laubscher and John G. White, for plaintiff in error.
    Different views prevail in different states as to what, under the statute, gives rise to a mechanics’ lien. Some states, among which are Illinois and Nebraska, hold that it is the use of the materials in the construction or repairing of the building. In Ohio, however, it has become a rule of property that the lien arises out of the furnishing of the materials with a contract that the same shall be used in the construction or repairing- of the building; that the lien exists even though the materials have never been actually used. This was first settled by an inferior court in Horton v. Carlisle, 2 Dis., 184; Hazard Powder Co. v. Loomis, 2 Dis., 544; and afterwards by this court in Beckel v. Petticrew, 6 Ohio St., 247.
    We believe it to be a well established rule of interstate and international private law, that, when the place of contract and the place of x>erformance are the same, the “obligation” and “nature” of the contract are to be determined by the law of that place. No implied incidents will be attached to the contract unless authorized by that law, and, usually, such incidents as are attached to the contract by the law of that place, will be enforced wherever else the contract may come under consideration.
    Thus, if no rate of interest is expressed in the contract, the interest of the place prescribed by the law of the place of payment governs. Story, Conflict of Laws, sections 291 and 296.
    If, by the law of the place of contract, partners are liable in solido, they are then thus liable everywhere, even though, by the law of the domicile of the partnership, each is liable only for his proportionate part. Story, Conflict of Laws, .sections 264, 265, 322; Gilman v. Broton, 1 Mason, 191; Whiston v. Stodder, 8 Martin, Ohio St., page* 95; Tyree v. Sands, 24 La., Ann. 363; Watercraft Act of Missouri, Revised Statutes of Missouri, 1845, page 181, section 1.
    Missouri if the contracts or torts occurred outside of the state. It will be observed that the language of the statute was quite broad enough to cover such cases. Noble v. Steamboat St. Anthony, 12 Mo., 261; Twitchell v. Steamboat Missouri, 12 Mo., 412; Fisk v. Steamboat Forest City, 18 Mo., 587; James v. Steamboat Pawnee, 19 Mo., 517; Revised Statutes of Illinois, Edition 1845, page 71, section 1.
    This was held to apply only to contracts made within the limits of the state of Illinois. Frink v. King, 3 Scam, (4 Ill.) 144-150; Revised Statutes of Michigan, Edition 1846, page 537, section 1. This was held to apply only to contracts and torts contracted and committed within the limits of the state of Michigan. Bidwell v. Whittaker, 1 Mich,, 469; 
      Turner v. Lewis, 2 Mich., 350. The reasoning of this case seems directly applicable to the case at bar. Nearly the same ruling was made by this court, under our own Watercraft Law in Steamboat v. Jantzen, 16 Ohio 91; Goodsill v. Brig St. Louis, 16 Ohio, 178, and Steamboat Ohio v. Stunt, 10 Ohio St., 582; Steadman v. Patchen, 34 Barb., 222; Dewitt v. Burnett, 3 Barb., 89; In re Ins. Co., 22 Fed., 109; Cartright v. N. Y. R. & M. R. R. Co., 59 Vt., 675; Le Forest v. Tolman, 117 Mass., 109; Holman v. Johnson, Cowp., 341.
    Take the finding of fact as well founded, and we claim it to be merely an inference which is unsupported by the facts actually found, that there was an expectation on the part of the Quarries Company that the stone would be used in the paving of Kinsman street. There still rested no obligation upon the purchaser to so use it. Had he not so used it, no cause of action would have arisen in favor of the Quarries Company against him. It would not have injured or damaged the Quarries Company, had the purchaser not so used it.
    Carrying out this same thought, it has been repeatedly held that, if intoxicating liquor is sold in a state where such sale is forbidden, the contract remains valid, and the price may be recovered, although the vendor knows that the vendee intends to take the liquor into another state and there sell it contrary to law, provided the seller does no other act to assist the violation of law than to sell the goods, and this rule prevails even though the action for the price of the liquor may be brought in the state where the vendee intends to violate the law. Boothby v. Plaisted, 51 N. H., 436; Williams v. Feineman, 14 Kans., 288; McCarty v. Gordon, 16 Kans., 35; Kling v. Fries, 33 Mich., 275; Dolan v. Green, 110 Mass., 322; Abberger v. Marrin, 102 Mass., 70; Roethke v. Phillip Best Brewing Co., 33 Mich., 340; Webber v. Donnelly, 33 Mich., 469; Bachman v. Jenks, 55 Barb., 468; Feineman v. Sachs, 33 Kans., 621; Mack v. Lee, 13 R. I., 293; Fuller v. Leet, 59 N. H., 163; Sherley v. McCormick, 135 Mass., 126; Lauter v. Rowen, 59 N. H., 215.
    The same doctrine has been applied to the sale of lottery tickets to be re-sold in another state in violation of law. McIntyre v. Parky, 3 Met., 207.
    And to insurance solicited in Ohio by an unauthorized agent, contrary to the laws of Ohio, but the application accepted in New York. Hyde, Receiver, v. Goodnow, 3 N. Y., 266.
    We answer first that while the statute as to mechanics’ liens should be liberally construed when it has once been ascertained that the lien exists, it should be strictly construed when considering whether or not the circumstances bring the case within the statute and give rise to a right to a lien. White v. Rockel, Mech. Lien, pages 44-5; Phill. Mech. Liens, sections 15-21; 2 Jones, Liens, sections 15, 54M3; Tilford v. Wallace, 3 Watts., 141; Copeland v. Kehoe, 67 Ala., 594.
    We answer next, that the presumption is always against our laws applying to contracts made in another state, when the effect of such application is to attach to such contracts incidents or liens not attached by the law of the state where made. Stetson v. City Bank, 2 Ohio St., 167; Booth v. Hubbard, Admr., 8 Ohio St., 243; Hoover v. Penna. Co., 25 Ohio St., 667; Brooks, Admr., v. Ry. Co., 53 Ohio St., 655; Woodard, Admr., v. Railroad Co., 10 Ohio St., 121; Steamboat Ohio v. Stunt, 10 Ohio St., 582; Brigel v. Starbuck, 34 Ohio St., 280; 
      Whitford v. Penna. R. R. Co., 23 N. Y., 465; Crowley v. Penna. R. R. Co., 30 Barb., 99; Needham, Admx., v. Grand Trunk R. R. Co., 38 Vt., 294; McCarty, Admr., v. Railroad Co., 18 Kans., 46; The Lottawanna, 21 Wall., 558; Trustees v. Beers, 2 Black, 448; Bourgette v. Williams, 73 Mich., 208; Kinney v. Sherman, 28 Ill., 520. The same ruling was made by the Supreme Court of Massachusetts; Donahy v. Clapp, 12 Cush., 440, and by the Supreme Court of Pennsylvania; Fahnestock v. Wilson, 95 Pa. St., 301.
    So it has been repeatedly held, that, when a contract is made at a time when the statute attaches a mechanic’s lien as an incident to it, the lien cannot be taken away by subsequent legislation. Hallahan v. Herbert, 11 Abb. Pr., N. S., 326. Buser v. Shepard, 107 Ind., 417; Streubel v. Mill & Miss. R. R. Co., 12 Wis., 67.
    These cases seem to be sufficient, also, to dispose of the proposition that attaching a mechanic’s lien to a contract is merely giving a remedy, which all concede is to be governed by the lex fori. We insist that the mechanic’s lien is much more than a mere remedy. That it is a right of property, as was said in the Supreme Court of the United States in the Lottawanna case, already referred to. Christman v. Charleyville, 36 Mo., 610; Fahnestock v. Wilson, 95 Pa. St., 301. The same ruling that a mechanic’s lien was not a mere remedy was made in Weaver v. Sells, 10 Kan., 609, and Warren v. Woodard, 70 N. C., 382; King v. Ship Building Co., 50 Ohio St., 320.
    This is a distinct decision that the furnishing intended by the statute is synonymous with such a delivery as passes title under contracts of sale. The same interpretation is given to the word “furnish” in Horton v. Carlisle, 2 Dis., 184; Hazard Powder Co. v. Loomis, 2 Dis., 544; Beckel v. Petticrew, 6 Ohio St., 247; Watson Coal & Mining Co. v. James, 72 Ia., 184; State v. Freeman, 27 Va., 520. This being so, the goods were furnished in New York. Shall our statute be construed to apply to such contracts? Then had the Quarries Company furnished the stone direct to the city for the purpose of having it used in the paving of Kinsman street, it could have had no lien, or else, to get a lien, it must have filed its verified statement with the county recorder of the county in which Albion,N. Y., is situated. To give this construction would be an absurdity. Does the statute intend to give a lien to sub-contracting material men when it does not give one to principal contracting material men ? Section 3187, which provides for giving a lien where a street, turnpike, road, etc., is constructed by virtue of a contract made with the owner, contains the same provision that the verified statement shall be filed with the recorder of the county where the materials or machinery was furnished.
    Coming down to the decisions directly in point against the ruling of the circuit court, we may refer to the decision of another inferior court in Ohio, Bender, Assignee, v. Stettinius, 19 Bull., 163, 167. We may also refer to the great authority of the court of appeals of New York in Birmingham Iron Furnace Co. v. Glen Cove Co., 78 N. Y., 30; 3 Banks v. Bros., Revised Statutes N. Y., 6th Ed., 797, section 1; Birmingham Iron Foundry v. The Glen Cove Starch Mfg. Co., 78 N. Y., 30; Thurman v. Kyle, 71 Ga., 628; Atkins v. Little, 17 Minn., 342; 2 Compiled Laws of Mich., section 6789; Stout v. Sawyer, 37 Mich., 313.
    
      It is not true that any of the combinations of facts to which the Ohio law attaches a mechanic’s lien occurred in Ohio. Ohio law, as already shown, attaches the lien to the contract, and to the “furnishing. Both these occurred in New York.
    Did it attach the lien to contract, plus furnishing, plus use, it would be correct to say that part of the combination of facts occurred in Ohio. As it is, the essential facts were a New York contract and a New York delivery.
    It is found by the court of common pleas, and we have shown by our citation from the 78 N. Y., that, were this case turned around, had an Ohio citizen sold and delivered in Ohio, materials to a New York citizen, to be used in constructing a building in New York, the New York courts would not give a lien to the Ohio citizen. Under such circumstances, why should our courts give a lien in this case to New York citizens ? Under such circumstances, it has been held that courts, acting on a so-called principle of retaliation, will not give remedies denied by the law of another state to citizens of that state. Smith v. Brown, 3 Binn., 201; Boggs v. Teackle, 5 Binn., 332.
    By the public policy of Ohio no privileges are to oe extended to persons of states which refuse similar privileges to Ohio citizens. This is strongly marked in the statutes relating to insurance companies.
    Section 3630c, which provides that no certificate shall be given to a company of a state whose statutes do not authorize Ohio companies to do business there on the same basis as in Ohio, was enforced against a New York company in the case of Ohio v. Moore, 39 Ohio St., 486. The same principle was recognized in State v. Reinmund, 45 Ohio St., 214, and the law again applied in State v. Ins. Co., 47 Ohio St., 167 et seq.
    
    By the amendment in 88 Ohio Laws, page 252, section ,3630c has been made still more stringent, thereby indicating the policy of the state, in accordance with which the DeGraff v. Robert Quarries, a New York corporation should not be granted the relief which the courts of New York would refuse a citizen of Ohio under similar circumstances.
    Supplemental section 6134a (91 Ohio Laws, 408) giving a right to maintain actions in this state for death by wrongful act in another state, provided such other state gives a reciprocal right, is another illustration of this rule of public policy in Ohio.
    
      Wilcox, Collister, Hogan & Parmely; Ford, Boyd & Crowl and M. G. Norton, for defendants in error.
    The precise question herein made seems not to have been authoritatively decided in Ohio, but decisions construing laws analogous in their force, operation and effect, furnish a solution of the questions herein presented, which, as we understand them, are as follows:
    
      First — Was it within the legislative power to make the mechanics’ lien law apply to a material man, who, under contract made out of the state, furnished material which was delivered outside of the state, but to be used within this state ?
    And if so,
    
      Second — Was the mechanics’ lien law in force at the time of the transaction in question, broad enough to include, and did it include, such material man ?
    If we understand the position of the plaintiff in error, he answers both of these questions in the negative.
    
      He insists, first, that it is not a question of legislative intent, but of legislative power. If the statutes had in terms given this remedy to all who contribute labor or material for the improvement of property within this state, whether the material be actually delivered within or without the state, and irrespective of the place of contract, he would still contend that no lien could be enforced. And yet, the.precise question has been repeatedly decided the other way by the courts of this state in cases arising under the Water Craft Law. Steamboat Champion v. Jantzen, 16 Ohio, 91; Goodsell v. the Brig St. Louis, 16 Ohio, 178; Schooner Aurora Borealis v. Dobbie, 17 Ohio, 125.
    Here it was clearly announced to be competent for the legislature to afford a lien and remedy in this state, for liabilities incurred beyond the limits of the state. Steamboat Ohio v. Stunt, 10 Ohio St., 582; Steamboat Messenger v. Pressler, 13 Ohio St., 255.
    The analogy between the water-craft lien law and the mechanics’ lien law is complete. The former have, in the cases above referred to, been upheld, and will in cases where the facts authorize it, be enforced by our courts irrespective of the place of contract or delivery of supplies.
    The next question presented is: Has the legislature clearly expressed an intention to give to section 3193, Revised Statutes, this comprehensive effect?
    The language of that section is perfectly general.
    The benefit of the act is given to “any material man” who furnishes supplies. Again the analogies of decided cases in this state are complete.
    Section 5430, Revised Statutes, in general language gives exemption to any person who has a family, and the protection of this section has been held to extend to nonresident debtors. Sproul v. McCoy, 26 Ohio St., 577; Cross v. Armstrong, 44 Ohio St., 261.
    If it be true that it. is within the power of the legislature to give a lien for material's furnished to be used in this state, whether delivered outside of or within the state, no good reason can be urged for giving the general language of section 3193 the limited application contended for by the plaintiff in error. Campbell v. Coon, 149 N. Y., 556.
    It will be seen that the New York courts are not upon the principles contended for by the plaintiff in error, in conflict with the following cases, all of which are directly in point and all of which fully sustain our contention: Thompson v. St. Paul Ry. Co., 45 Minn., 13; Fagan v. Boyle Ice Co., 65 Texas, 324; Gatey v. Casey, 15 Ill., 189; Great Western Mfg. Co. v. Hunter, 15 Neb., 32; St. Louis Bridge Co. v. The M. C. & M. W. R. R. Co., 72 Mo., 664.
    The plaintiff in error attempts to distinguish some of these cases from the cáse at bar by pointing out that under the laws of those states it is the placing of the material on the property to be improved which gives the lien, while under the laws of Ohio it is sufficient if the material be furnished for that purpose, whether actually used or not. We do not see how this distinction is of any advantage to the plaintiff in error. The lien in this ease arises under sections 3193 and 3195 of the Revised Statutes.
    It therefore appears that this case being one in which the sub-contractor seeks to reach funds, the only statement required to be filed, is to be filed as in Illinois and Minnesota, with the recorder of the county where the property is situated. It needs no citation of authority to establish the proposition that the same word may have different meanings in the same statute. Thus the word “heir” in the statute of descent and distribution. The word “owner” may mean tenant. B. & O. Ry. Co. v. Walker, 45 Ohio St., 577. The word “owner” may include a mortgagee : Harrison v. The Incorporated Village of Sabina, 1st O. C. C. R., 49.
    And in this very statute the word “owner” may mean “tenant for life,” for “years,” or “owner in fee.” What does “furnish” mean in section 3193, which controls the cáse at bar ? ' Here the delivery would be only to the contractor, and may occur in a county or state other than that in which the property is situated. .
    The plaintiff realizes‘that to give the word “furnish” the meaning contended for in determining the question as to the proper place for filing the lien, will be to confine the right to a lien to cases where materials are actually delivered within the county in which the building or other structure is erected, and he therefore boldly asserts that this was the legislative intent.
    That such construction is too narrow, has been held in two well-considered cases decided in this state by tribunals of jurisdiction inferior to that of this court. Phoenix Furniture Co. v. Put-in-Bay Hotel Co. et al., 33 Bulletin, 318; Carnegie Bros. & Co. v. Railway Co., 1 Ohio, Nisi Prius Reports, 300.
    That laws providing for the creation and enforcement of mechanic’s liens are remedial in their nature, and that the lien does not arise out of, nor is it of the essence of the contract for labor, nor dependent on the motives which suggest its being enforced, is a proposition which is elementary. Phillips on Mechanics’ Liens, 15, section 9, 44, section 28; Woodbury v. Grimes, 1 Colo., 100.
    The following authorities may be cited in support of the proposition that a mechanic’s lien relates solely to the. remedy; is controlled solely by the law of the forum; is not of the essence of the contract of employment, and is subject at all times to legislative control and change: Frost v. Illsley, 54 Me., 345; Bangor v. Goding, 35 Me., 73; Hall v. Bunte, 20 Ind., 304; Martin v. Hewett, 44 Ala., 418; Best v. Bumgardner et al., 122 Pa., 17.
    We contend that the obligation of Sterling & Son to The DeGraff & Roberts Quarries will not be ehang'e'd, and no obligatory incidents will be attached to their contract by giving to The DeGraff & Roberts Quarries the benefit of the Mechanics’ Lien Laws of Ohio. That the sole effect will be to give to The DeGraff & Roberts Quarries a preference over another creditor of Sterling & Son; that this preference arises under the laws of this state and operates sole]y upon property within this state, is not sought to be enforced in any jurisdiction without this state, and that the law relating to and providing for enforcement of this lien is not in any sense extra-territorial.
   Bradbury, J.

In the year 1893, J. L. Sterling & Son entered into a contract with the city of Cleveland, for paving Kinsman street in said city. Prom time to time, as the work progressed, estimates were made of the amount of work done, and of the sums payable to the contractors on account thereof. About the fifth day of July, 1893, an estimate was made, designated as the third, amounting to $2,437.43. Before this estimate was made, the contractors assigned and transferred to “The John Porter Company” $3,000.00 of it. This sum . was larger than proved to have been earned when, after-wards, the assessment was made, so that the assignment covered this entire assessment and was not then fully satisfied.

Notice of this assignment was duly given to the city; afterwards the “The John Porter Company” assigned to the plaintiff in error whatever claim it had against the city of Cleveland by vi rtue of the assignment before noted, made to it by the contractors, J. L. Sterling & Son.

The contractors, J. L. Sterling & Son, procured the stone with which they paved Kinsman street, from the “The DeGraff & Roberts Quarries,” defendants in error, and on the 3d day of July, 1893, the latter company proceeding under section 3193, Revised Statutes, filed with the proper boards of the city of Cleveland, a sworn and itemized statement of the amount and value of the stone furnished by them to the contractors 'for paving Kinsman street, and at the same time filed a copy of such statement with the recorder of Cuyahoga county.

The city of Cleveland declining- to pay the assignee the sum assigned, he brought, in the court of common pleas of Cuyahoga county, an action against the city for its recovery. Thereupon the city answered admitting the making and the amount of the estimate in controversy, but denying that it owed the full amount thereof, and asking that the “The DeGraff & Roberts Quarries” be made a party to the action, which accordingly was done. The “The DeGraff & Roberts Quarries,” on being brought into the action, answered, setting forth that it was a corporation organized under the laws of the state of New York, and duly authorized to transact business in the state of Ohio, and also setting forth that it had furnished to the contractors, under a contract entered into with them, the stone used for paving- Kinsman street, and that not having been paid for the same, they had perfected a sub-contractor’s lien on any fund due from the city on account of the paving of Kinsman street.

The cause was tried to the court, and at the request of the defendants, the court found and stated -the facts, separate from its conclusions of law. It found that the city was indebted to the amount of the estimate No. 3, and that with interest thereon, aggregated $2,692.17.

There seems to have been no contention respecting the regularity of the assignment and transfer of this estimate by the contractor, J. L. Sterling & Son, to the John Porter Company nor from the latter to the plaintiff in error, so that his right to a judg’ment against the city was clearly established, unless the DeGraff & Roberts Quarries had acquired a right thereto as sub-contractors by virtue of section 3193, Revised Statutes. This brings us to the real question in the ease.

The finding of facts shows that the DeGraff & Roberts Quarries had taken every formal step required to perfect their lien upon the fund, but it shows also that the DeGraff & Roberts Quarries was a corporation created under the laws of the state of New York; that, the contract to furnish the stone for paving Kinsman street was made in the state of New York; that the stone was to be delivered to the contractors in that state and by them transported to Cleveland, Ohio; that it was so delivered and transported, and that the stone was sold and delivered for the purpose of being used by tbe contractors for paving Kinsman street, and except a small quantity was thus used. The court further found that by the laws of the state of New York, no lien exists for materials furnished in other states to be used in New York. The court of common pleas holding this to be a New York contract, and also holding that the mechanics’ lien laws of Ohio have no extra-territorial operation, refused to enforce the lien taken by the De-Graff & Roberts Quarries Company, and gave judgment for the plaintiff in error. On proceeding- in error had in the circuit court this judgment was reversed, and judgment rendered on the finding of facts in favor of The DeGraff & Roberts Quarries.

Section 3184, Revised Statutes, provides that:

“A person who performs labor, or furnishes * * * material for constructing, etc. * * * a house * * * by virtue of a contract with the owner * * * shall have a lien. ” * * *

Section 3193, Revised Statutes, which provides the remedy for sub-contractors, etc., employs language equally comprehensive. It reads as follows: Section 3193. “Any sub-contractor, material man, laborer or mechanic who has * * * furnished material * * * for the contraction * * * of any turnpike, road improvement, or other public improvement, provided for in a contract between -x- -» -x- any board or officer, and a principal contractor * * * may * * * file * * * a sworn and itemized statement.’’ * * *

The argument for the exclusion of defendants in error from the beneficial operation of these statutes is not based on any words of exclusion contained in the statutes themselves, but is vested on those general principles, that pertain to the conflict of laws.

Counsel for plaintiff in error contends that the lien is merely incidental to and arises out of the contract under which the material is to be delivered ; that as the contract under which defendant in error furnished the material in question was made and fully executed in the State of New York, it was a New York and not an Ohio contract; that it must have been made with reference to the laws ■ of New York and not to those of Ohio, and that therefore an incident, depending wholly on the statutes of Ohio would not attach to the contract, and in fact could not attach to it without giving to the statutes of Ohio an extra-territorial effect.

In confirmation of this view of the subject counsel cite a decision of this court: Beckel v. Petticrew, 6 Ohio St., 247. It was there held that: “The lien authorized by the act to create a lien in favor of mechanics and others in certain cases will extend to all materials, in good faith furnished .for the purpose of erecting, or repairing a house in pursuance of a contract with the owner notwithstanding a portion of such material may subsequently be otherwise appropriated without the consent of the party furnishing them. ’ ’

'This decision, it is claimed, vests the lien of the material man upon the contract and not upon the use to which the materials furnished by him were devoted.

It is quite correct to say that this decision holds that if the contract, under which materials have been furnished for constructing, etc., any building, etc., within the statute, discloses that such materials were furnished for the purpose of being used in the performance of the work of construction, etc., that this purpose is enough to create the lien, even if the materials should be diverted from such use, provided the material man did not consent to such diversion. Our attention also, might have been called to a still earlier case decided by this Court: That-of Choteau et al. v. Thompson & Campbell et al., 2 Ohio St., 114, when it was held: “If work be done or materials furnished, without a contract that they shall be put to the particular use of erecting, altering or repairing a craft or building, no lien can be asserted upon the building or vessel in which they may be placed. The contract intended by the Statute is one that has reference to the purpose for which the work is done or the materials furnished.”

These two decisions establish both the necessity of a contract prescribing the purpose to which the materials are to be devoted, and its sufficiency to create the lien, althoug'h the material should be diverted from the use agreed upon ; the lienor not assenting thereto. Notwithstanding the stress placed upon the contract by these decisions, we do not think it follows from them as a necessary sequence that the lien of the mechanic- and material men is a mere incident of such contracts, attaching only where the contracts are Ohio contracts, that is, where they are to be executed within this state.

The lien is a creature of our statutes, and whoever falls within the descriptive words of the statute may rightfully claim its benefit, wherever our statutes may be enforced. This court, in the cases of Choteau et al. v. Thompson & Campbell et al., 2 Ohio St., 114, and Beckel v. Petticrew, 6 Ohio St., 247, was not dealing with the question now under consideration; it was not then concerned about the nativity of the contract; it was construing the statute respecting the matters then in hand, in order to arrive at the legislative intention respecting them. In the first case it held, among- other things, that a sale of materials, without any reference to the use to which they should be put, would not afford a ground to assert a lien, because the contract referred to by the statute required that the materials should be sold for the purpose of being used for the construction, etc., of the house, etc., upon which the lien was to be asserted. In the second case it held that the statute, when fairly construed, did not require that all the materials furnished under the contract should have been used in the structure for which they were furnished and on which the lien was asserted. In those eases our predecessors were seeking to ascertain, and to declare the intention of the legislature, and for that purpose they looked to the language which that body had employed. We are required not only to ascertain the legislative intention, but also to determine whether the subject over which they attempted to legislate was within their authority.

To ascertain the legislative intention we must Took to the language it employed to express it. When this is done, we find the language employed, when construed according to its natural import, will clearly embrace all contracts to furnish materials for the purposes named in the statute, regardless of the place where the contract was made or the • materials to be delivered. The words are “any * * * material man,’’etc., “who has furnished material * * for the construction * * of an improvement,” * * * * more comprehensive language could not have been used. No other words appear that tend to establish an intention to narrow the scope of those recited, or that indicate a purpose to limit the benefits of the statute to vendors, who bring within the state the materials they furnish. The defendants in error, therefore, are plainly within the terms of the statute. This construction finds support in Sproul v. McCoy, 26 Ohio St., 577, where this court held that the statutes of this state allowing exemptions from execution and sale to “every person who has a family,” may be invoked by ‘ ‘any debtor against whom an action is prosecuted in the courts of this state, whether such debtor be or be not a resident of this state.” The language of the statute granting- the exemption is no more comprehensive than that employed by the mechanics’ lien statutes in giving a lien to sub-contractors and material men.

We now come to the question of the power of the legislature to dispose of the fund, or create alien, in favor of a vendor who sells and delivers materials in another state.

That the statutes of Ohio cannot operate, propria vigore, beyond the boundaries of the state, is a settled rule of law, and therefore, notwithstanding the intention of the legislature to embrace within the beneficial provisions of the statute all persons who should sell and deliver, in another state, materials to be brought here and used for the purposes designated by the statute, yet the statute could not be applied to such transactions, if thereby its operation was extra-territorial. Remedial laws, however, whether written or unwritten, do not operate extra-territorially, on account of being applied by the courts of the state in which they are in force, to actions pending in such courts on contracts made and to be performed in another state or country. Remedies will bead-ministered according- to the law of the place where the action is instituted, without regard to the law of the place where the right arose. Heaton v. Eldridge & Higgins, 56 Ohio St., 87; Andrews v. Harriott, 4 Cowen, 508; Robinson v. Bland, 2 Burr. 1084; De La Vega v. Vianna, 1 Barn, and Adolph, 284; Trasher v. Everhart, 3 Gill and Johns., 234; Hyde v. Goodnow, 3 Comstock, 270; Bank of the United States v. Donnally, 8 Peters, 361. This principle is illustrated and enforced by a large array of authorities, that are practically unanimous, but it is not necessary to refer to them further.

By the great weight of authority statutes that relate to liens of mechanics and material men are remedial; instead of creating new and substantive rights, they simply afford new and cumulative remedies to enforce obligations previously recognized. Hanes & Co. v. Wadey et al., 73 Mich. 178; Best v. Baumgardner & Co., 122 Penn. St., 17; Martin v. Hewitt, 44 Ala., 419; Hall v. Bunte, 20 Ind., 304; Bangor v. Goding et al., 35 Me., 73; Frost v. Ilsley, 54 Me., 345; Woodbury et al. v. Grimes et al., 1 Colo., 100.

These principles would seem to settle the question in favor of the operation of the statute in the case, of material delivered in another state.

However, should the rule in reference to the nature of mechanics’ lien laws be otherwise, and those laws held to create substantive rights,which, when once vested, are placed beyond legislative interference, nevertheless as the fund in controversy originated under our laws, was actually within our borders, and was in the . custody and subject to the orders of one of our courts, it would seem to naturally follow that its disposition should follow the course prescribed by our legislature. To thus dispose of the fund is to assert the dominion of our own statutes, while to distribute it according to the statutes or decisions of another state would be to acknowledge their superiority The case does not fall within the reasons of those rules which induce the court of one state or country to construe the rights of parties arising under a contract, made and to be executed in another state, according to the laws of the latter. In the case before- us the material was furnished for the purpose of being used in an improvement to be made in this state ; under such circumstances how can it be said that the parties did not contemplate the laws of Ohio in reference to rights which thus arise? Surely if the question related to a lien upon real estate, such as the mechanics’ lien laws of this state create, its existence and its terms would depend upon our statutes ; the laws of 'New York could place no burden upon land situated in Ohio. True, a lien upon real estate was not asserted nor involved in. the case before us, but there was involved the distribution of afund created and set aside by a statute of this state for the benefit of persons who might, fall within the class declared by that statute to have a right to share in its distribution. The statute in conferring this benefit made no distinction between a fund raised by a sale of real estate upon which a lien was given, and a fund in the possession of some public agency. In each case the distribution was to be made according to the same rule. We think the right of the parties in either ease was determinable according to the laws of this state.

This view of the question is strongly supported by the decisions of this court in respect of the water craft statutes. Schooner Aurora Borealis v. Dobbie, 17 Ohio, 125; Steamboat Ohio v. Stunt, 10 Ohio St., 582; Steamboat Messenger v. Pressler, 13 Ohio St., 255. It also finds support in'the following cases: The St. Louis Bridge & Construction Co. v. Railroad Co., 72 Mo., 664; Thompson v. Railway Co., 45 Minn., 13, 15; Great Western Manufacturing Co. v. Bunter Bros, et al., 15 Neb., 33, 37; Fagan & Osgood v. Boyle Ice Machine Co., 65 Tex., 324; Gaty v. Casey, 15 Ill., 189.

The defendant in error, The De Graff and Roberts Quarries, was, by the court of common pleas, made a party to the action on the application of the city of Cleveland. This action of that court is attacked as erroneous by counsel for plaintiff in error, but as the question does not arise on the records, it has not been considered in this opinion.

Judgment affirmed.  