
    130 F. 90
    RUSSELL et al. v. HAYNER et al.
    No. 1,015.
    Circuit Court of Appeals, Ninth Circuit.
    May 2, 1904.
    
      Sullivan & Fink, Gordon Hall, and Albert Fink, for appellants.
    Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
   HAWLEY, District Judge

(after making the foregoing statement). Did the court err in sustaining the demurrer and in entering judgment against the appellants?

The act relating to mechanics’ liens should be liberally construed. The evident spirit and purpose of the act is to do substantial justice to all parties who may he affected by its provisions, and the courts should avoid unfriendly strictness and mere technicality. Springer Land Ass’n v. Ford, 168 U.S. 513, 18 S.Ct. 170, 42 L.Ed. 562; Salt Lake H. Co. v. Chainman M. & E. Co. (C.C.) 128 F. 509; Hooven v. Featherstone’s Sons, 111 F. 81, 91, 49 C.C.A. 229. But in following this rule courts should always be careful not to impair the force of the statute or fritter away its meaning by construction. Davis v. Alvord, 94 U.S. 545, 549, 24 L.Ed. 283; Malter v. Falcon M. Co., 18 Nev. 209, 212, 2 P. 50. A mechanic’s lien is purely of statutory creation, and can only be maintained by a substantial observance and compliance with the provisions of the statute. Whatever is made necessary to the existence of the lien must be performed, or the attempt to create it will be futile. A substantial adherence to the terms of the statute in the notice of the lien is indispensable. Phill. on Mech. L. (3d Ed.) § 9.

The merits of this case, as against Leo Bartz and Charles Seipel, or any other of the parties made defendants herein on the ground that they claim to have some interest in the property, are not involved upon this appeal. The sole question to be determined is whether or not the complaint states facts sufficient to constitute a cause of action against the appellees. There is no direct averment in the complaint, nor any positive statement in the lien, as to the name of the owner of the building, or any statement therein that the owner thereof was unknown. There is considerable diversity of opinion in the state courts as to whether the allegation of the ownership of the building is to be considered essential or not. This conflict arises principally upon the language of the statutes of the particular states. The weight of authority seems to be that, where the statute requires it, the name of the owner, if known, must be stated, and, if the name of the owner is unknown, that fact ought to be stated, and the name of the reputed owner given; that these facts ought to be stated, independent of the description of the'property, in a direct, clear, and positive manner. Phill. on Mech.L.(3d Ed.) § 345, and authorities there cited; Boisot on Mech.L. 379, and authorities there cited.

But even if it could be held that the allegation as to the ownership of the building was sufficient, still the, complaint would be defective, because the statement in the lien that Leo Bartz and Charles Seipel are the names of the owners of the lot of land upon which the building was erected, and that Helen F. Hayner was the name of the party who was under an agreement to purchase, and that she was the person who entered into an agreement with the person for the erection of the building, is not sufficient to constitute a compliance with the provisions of the Alaska Code. In Cross v. Tscharnig, 27 Or. 49, 39 P. 540, it was expressly held that knowledge by the owner of land that improvements are being made on his land is necessary to' sustain a lien thereon for work or materials used in such improvement; that a mechanic’s lien claim which states that the material was furnished to one person, and that the land was owned by another, but does not state that the material was furnished at the request of the owner, is fatally defective, though i’t alleges that the person to whom the material was furnished was in possession of the land under a contract of purchase with the owner.

The mere fact that appellants built the structure at the instance of Hayner, who was in possession of the land under a contract of purchase with the owners, is not, o.f itself, sufficient to constitute a valid lien upon the building. In order to bring the case within the provisions of section 262, it must be alleged and proved that the work or labor was done “at the instance of the owner of the building, or his agent,” for it is only where such facts appear that the provisions of section 262, to the effect that “every contractor, * * * builder, or other person, having charge of the construction * * *’ of any building as aforesaid, shall be held to be the agent of the owner for the purpose of this Code, * * * ” applies. To authorize a lien under the provisions of this section, there must be an employment by the owner of the building, or his authorized agent, and the employment of the contractors by Helen F. Hayner, who was occupying the land under a contract of purchase, does not constitute the employment contemplated by this provision of the Code. Gould v. Wise, 18 Nev. 253, 258, 3 P. 30.

It does not appear from the complaint that the owners of the lot had any knowledge of the contract made by Hayner with appellants for the construction of the building, or that it was constructed at their instance. In order to bring the case within the provisions of section 265 of the Alaska Code, it was necessary for the appellants to have alleged in the complaint or lien that the building was constructed upon the land “with the knowledge of the owner or the person having or claiming any interest therein,” for it is only in such cases that this section provides that it shall be held to have been constructed “at the instance of such owner or person or pérsons having or claiming any interest therein,” unless the owner gives the notice therein prescribed, and this notice is not required to be given until after the owner shall have obtained “knowledge of the construction” of the building.

We have not overlooked the contention made in the brief of appellants to the effect that the answer of Bartz and Seipel, which is contained in the record, shows that the owners of the lot had knowledge of the erection of the building, and that it was constructed at their instance and request; but there is nothing alleged in the complaint or lien to that effect, and the answer of the owners of the lot cannot be considered by this court in determining the question before us — as to whether the complaint states facts sufficient to constitute a cause of action against appellees herein. The fact is that appellants were given the opportunity to amend their complaint, and, if there were any material facts that would show knowledge on the part of the owners of the lot, etc., they should have amended their complaint so as to properly present such facts to the court.

It is also claimed that in any event the court erred in sustaining the demurrer interposed by appellees, because the complaint shows facts sufficient to entitle appellants to recover a personal judgment against appellee Helen F. Hayner for whatever sum might be found due upon her contract with appellants. This might be true under the provisions of state codes which have abolished all distinctions existing under the common law as to suits in equity or actions at law, or under a state statute which expressly provides in the act relating to mechanics’ liens that such a course may be pursued. But this is purely an equity suit, wherein appellants seek relief only under “the benefits of the law relative to the liens of mechanics and others.” They could doubtless bring an action at law to recover a judgment against Helen F. Hayner for whatever amount of money is found due under the contract.

Upon the whole case, we are of opinion that the ruling of the court below was correct. The judgment of the District Court is affirmed, with costs.  