
    Kehoe v. Hansen, et al.
    
    One who, under a contract with the owner or contractor, hauls material for a building, erection, or other improvements, and which is used in the erection of the same, is entitled to a lien therefor under the mechanic’s lien laws of this state.
    (Syllabus by the Court.
    Opinion filed Jan. 27, 1896.)
    Appeal from circuit court, Edmunds county. Hon. Howard G. Fuller, Judge.
    Action to foreclose a mechanic’s lien. Judgment for defendants. Plaintiff appeals.
    Reversed.
    The facts are stated in the opinion.
    
      S. H. Oramner, for appellant.
    Though a party seeking to foreclose a mechanic’s lien should not allege such facts as to entitle him to a mechanic’s lien or fail to establish it by evidence, he might still be entitled to a personal judgment on the contract — and it would be error to refuse the introduction of any evidence under such complaint. McCormack v. Phillips, 34 N W. 53; McMillan v. Phillips, 5 Dak. 294; Patrick v. Abeles, 27 Mo. 184; Maltby v. Greene, 3 Abb. App. 144; Wilson v. Sleeper, 131 Mass. 177; Hill v. Newman, 38 Pa. 151; Brugman v. McGuire, 32 Ark. 733; Haight v. Schuck, 6 Kan. 192; Glocius v. Black, 4 Hun. 91, 67 N. Y. 5(33. Re Hope Mining Co., 1 Sawy. 710; Comp. Laws § 5469.
    
      G. H. Barron (Albert Gunderson of counsel), for respondents.
    The record must affirmatively show error to justify reversal.' Ormsby v. Conrad, 57 N. W. 778; Kent. v. Ins. Co., 50, Id. 85. No evidence can be reviewed on appeal without a motion for new trial having been made and overruled. Pierce v. Manning, 51 N. W. 332; Geer Scott v. Spalding, Id. 867.
   CORSON, P. J.

This was an action to enforce a lien under the mechanics’ lien law of this state. Judgment for defendants, and the plaintiff appeals. The cause of action is stated in the first paragraph of the complaint as follows: “That on the first Monday of March, 1886, at said Edmunds county, said plaintiff made a certain, contract with John Hansen, one of the defendants above named, by which plaintiff agreed to perform certain labor on and about the erection of certain buildings, structures or improvements,, to wit: a certain dwelling house, barn, and granary, situated upon the following described land. * * * Said labor was to be performed by said plaintiff and his team, and by said contract the said defendant John Hansen agreed to pay to the said plaintiff therefor at the rate of three dollars per day for each day’s labor so performed by said plaintiff and his team.” The usual allegations of filing a verified account and claim for a lien were made, and in conclusion the plaintiff prays for judgment for the amount due, and that the same be adjudged to be a lien upon the property described, etc. The account filed and made a part of the complaint reads as follows: “To hauling lumber with team, 25 days, $75.00; to interest, $8.00; to drawing and filing lien, $5.00.” The allegations of the complaint, taken in connection with the account filed, show that the claim for a lien is based upon a contract for hauling the lumber for the buildings erected on the land described.

Upon the trial the defendants objected to any evidence urn der the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action. This objection was sustained by the court, and all evidence excluded, and judgment rendered for the defendants. The specific ground of the objection was that the plaintiff could not enforce a lien for hauling lumber for the buildings, such a lien not being given by the terms of our lien law. The theory of the trial court in holding the complaint insufficient evidently was that a person hauling lumber for a building did not come within the terms of the statute, which provides ‘ ‘that every mechanic or other person who shall do any work upon, or furnish material,” etc., (Sec. 5469, Comp. Laws), is entitled to a lien upon such building, etc. This question has never been passed upon in this state, and is one of much importance. Ordinarily the contractor for the material delivers the same, and includes the expense of hauling in the price of the material. No objection, so far as we are aware, has ever been made to thus including the expense of hauling in the price of the material. If it may be so included, and the lien made to cover the same, why may not the cartman make a separate contract for hauling,. and acquire a valid lien therefor? We can discover no valid reason why, if the contract to haul the lumber is made directly by the owner with the cartman, he may not enforce a lien therefor. The hauling of the material, in many instances, constitutes a large item in the expense of the building, especially where the same is built of stone or brick. Labor, therefore, in getting the material together upon the ground, ready for the structure, is fairly within the meaning' of our mechanic’s lien law of work upon the building — work that enters into, and constitutes labor upon, the building. In this view we are supported by the supreme court of Pennsylvania. In Hill v. Newman, 38 Pa. St. 152, this precise question was before that learned court, and the court, speaking through Lowry, C. J., says: “The law is that every building may be subjected to a lien for the payment of all debts contracted for work done and materials furnished for or about its erection, and this may very fairly be taken to include the work of hauling the materials to the place of building. We think we should have to unduly strain the language in order to exclude it. It is work about the erection of the house, and is, of course, charged for by the material man when he has the lumber, stone, brick, sand, or lime delivered by his • own carters. The hauling away of the clay dug out of the cellar and foundation is always considered proper work for him; and we know not why the carter may not be a proper man to claim it, if he did the work at the request of the owner or the contractor, and not as a mere hireling under the contractor, or under a subcontractor. We think, therefore, that this lien-ought not to have been struck off.” It is true, the language of tbe Pennsylvania statute is somewhat broader and more comprehensive than that used in our statute, but the difference in the language is not such as to require a different decision under our statute. As we have said in former decisions by this court, the mechanic’s lien law is remedial in its nature, designed for the protection of a most meritorious class of persons, and should receive a liberal construction in furtherance of the protection of such persons. Pinkerton v. LeBeau, 3 S. D. 440, 54 N. W. 97. We have not-overlooked the case of Webster v. Improvment Co., 140 Mass. 526, 6 N. E. 71, in which the supreme court of that state held that a party hauling lumber or other' material for the construction of a building is not entitled to a lien. But the reasoning of the learned court in that case is not satisfactory to us, and the decision does not, in our view, as fully carry out the spirit and intention of the lawmaking power as the decision in the case cited from Pennsylvania. As bearing upon this question, see Dixon v. LaFarge, 1 E. D. Smith, 722; Eccleston v. Hetting (Mont.) 42 Pac. 105. Our conclusion, therefore, is that the plaintiff, upon the facts shown in the complaint, is entitled to a lien upon the building and premises, and that the circuit court erred in its ruling upon that question. The judgment of the circuit court is therefore reversed, and a new trial ordered.

Fuller, J., took no part in this decision.  