
    WILLIAM E. SPALDING Et Al., to the Use of DAVID L. MORRISON, vs. ELIZABETH A. DODGE Et Al.
    1. In a bill to enforce a mechanics’ lien it is not necessary to show any privity of contract between complainant and the owner of the property. It is sufficient that the owner has contracted to improve the same, and that the party claiming the lien has either furnished materials under a contract with the principal contractor or that he be a subcontractor for the doing of some of the work, or simply a laborer employed either by the contractor or subcontractor.
    2. The caption or title of a bill in equity forms no part of the bill and a mere addition thereto of the words “ to the use of M.” cannot be considered as an averment to which the .Court can look upon the hearing of a demurrer.
    3. It is not necessary that the contract price between the owner and original contractor should be stated in the bill for the purpose of showing that the amount claimed does not exceed the amount of the original contract. If it does exceed that amount, it should be set up as a mater of defense in the answer.
    Equity.
    No. 9,918.
    Decided March 5, 1888.
    The Chief Justice and Justices Cox and James sitting.
    Demurrer to a bill in equity, filed to enforce a mechanics’ lien; certified to the General Term for hearing in the first instance.
    The plaintiffs’ mechanics’ lien was duly filed and recorded in the clerk’s office March 29, 1886, and the bill to enforce the lien was filed April 10, 1886, with the following caption:
    
      Wm. E. Spalding and George W. Bonnell, doing ' business as firm of Wm. E. Spalding & Co., to the Use of David L. Morrison, Complainants,
    
    
      vs. I
    Elizabeth A. Dodge and Wm. C. Dodge, her hus- f band, Warner J. Kenderdine and Peter Paret, doing business as the firm of Kenderdine & Paret, Defendants.
    
    It set out that the original contractors, Kenderdine & Paret, subcontracted with the complainants, to furnish material and do the painting for $750.09. The amount of the principal contract was not stated.
    The defendants, Kenderdine & Paret, answered, admitting the facts stated in-the bill, and alleged that Mrs. Dodge, the owner of the property still owed them $1,270.17, in the original contract, and they, K. & P., consent that she pay to complainants, as a credit thereon, the amount claimed in the bill.
    The defendants, Dodge, demurred to the bill, assigning: 1st. Want of privity between the plaintiffs and the defendants, Dodge.
    2d. That although it is stated in the caption that the suit is for the use of David L. Morrison there is no corresponding averment in the bill.
    3d. Because it does not appear that Morrison has any interest in the lien, and as far as it is averred that the suit is for Morrison’s use, it is in contravention of the Mechanics’ Lien Act of July 2, 1884, which does not permit the assignment of the lien. And— *
    4th. That the lien as claimed contains no statement of the original contract price, nor anything to show that the plaintiffs’ claim is in excess of said original contract price.
    Mr. Wm. T. Bailey, for plaintiffs:
    The facts which the statute provides shall constitute a privity between the parties are that one owns the land and the other being a “ contractor or subcontractor” has erected a building or put an improvement thereon. There is no difference made by the statute itself between the rights of the contractor and subcontractor. The owner having contracted the land is thereby made subject to the claims of the subcontractor, who has “made a contract under a previous contract,” provided the claimant has filed the notice of the lien required by the act, as was done in this case, and no objection is raised against the notice. Sec. 1, Act of July 2, 1884.
    No other privity was 'necessary, although it is alleged, and the demurrer admits,that the said “Elizabeth A. Dodge knew of the agreement and of the progress and completion of the work and allowed the complainants to do the same.” Such knowledge has been uniformly held to charge the defendant owner. Fay vs. Orison, 60 Iowa, 126; Gilchrist vs. Anderson, 59 Iowa, 274.
    The act itself contains not one word on the subject of the assignment of the lien; and therefore we have only to inquire what the general doctrine is as to the assignment of dioses in action, which is simply this: that they cannot be assigned ordinarily so as to enable the assignee to bring a' suit in his own name, as was said in Davis vs. Biisland, 18 Wall. 659, where it was objected that the claim of a mechanic for a statutory lien cannot be enforced by an assignee by a suit in hisown name, and the Court said, p. 661: “Mc-Kil-lican had completed his claim by filing his lien before assigning it to the plaintiff. It was perfectly lawful for him to assign his claim. It was not against any principle of public policy to do so; when assigned the claim really belonged to the plaintiff; and according to the Code he was the proper person to bring suit upon it.”
    On the subject of the assignability of liens it was said in Murphy vs. Adams, 71 Maine, 113: “The weight of authority and reasoning is in favor of the assignability of the lien of a mechanic, and the right of his assignee to assert his claim in the same manner and to the same extent that the mechanic could.” See also Kerr vs. Moore, 54 Miss., 286; Tuttle vs. Howe, 14 Minn., 150; Goff vs. Papin, 34 Mo., 177; Skyrme vs. Occidental Mill & Mining Co., 8 Nevada, 219; Dewitt vs. Smith, 63 Mo., 263; Rogers vs. Omaha Hotel Co., 4 Neb., 54; Ritter vs. Stevenson, 7 Cal., 388; McMurray vs. Taylor, 30 Mo., 263; Jones vs. Hurst, 67 Mo., 568.
    In Iaege vs. Bossieux, 15 Gratt., 83, the Court lays down the rule to be, when the statute is silent on the subject, that these liens are as assignable as any other chose in action.
    While there is no allegation that any assignment has been made, it would be perfectly proper for the lien holder to pledge’ the debt and “mark” the cause for the use and benefit of the pledgee; and on that subject it has been said: “ Where the lien may not be assignable, yet it seems that an assignment of the debt would enable the assignee to prosecute the lien in the name of the mechanic. The latter would be justified in doing any act in aid of the claim which the law accords; and if he neglected to act the assignee might perform in the assignor’s name, whatever is permitted for the security and enforcement of the demand.” Phillips, Mech. Liens, sec. 56.
    But it is claimed quite inconsistently by the demurrer that the bill is defective because in the caption it is marked for the use of David L. Morrison, and it is not averred that the lien had in fact been assigned.
    If for any purpose the complainants wished to give that recognition of some inchoate right of Morrison’s, it was perfectly proper to use the language employed in the caption. Barstow vs. McLachlan, 99 Ill., 641.
    The mere bringing of a suit for the use of another is not tantamount to an averment of the assignment of the claim, and will not be deemed to raise the question of whether a mechanics’ lien is assignable.
    
      In its modern structure a bill is or may be composed of nine parts. The first part is the direction or address of the bill to the Court from which it seeks relief; 2, the introduction, naming the parties; 3, the premises, etc. 1 Daniel, Ch. Pr., 361 ; Story, Eq. Pl., sec. 26.
    In Jackson vs. Ashton, 8 Pet., 148, where it was insisted that a proper statement of the citizenship of the defendant in the caption was sufficient to give the Court jurisdiction without an averment of citizenship in the bill, Marshall, Ch. J., delivering the opinion of the Court, said: “ The title or caption of the bill is no part of the bill, and does not remove the objections to the defects in the pleadings. The bill and proceedings should state the citizenship of the parties to give the Court jurisdiction of the cause.”
    By the last clause of the first section of the act it is provided that the said lien shall not exceed or be enforced for a greater sum than the amount of the original contract. This has reference to the decree to be rendered; that is to say, the defendant, Dodge, can protect herself from the rendition of a decree for an amount in excess of what she was to have paid for the work under the original contract. This is a matter of defense; and if the defendant desires to avail herself of it, she must claim and show it.
    The rule is well settled that; to avoid the statute, a party must show himself to be within its exception. Boss vs. Duval, 13 Pet., 45.
    Mr. William A. Cook, for defendants.
   Mr. Chief Justice Bingi-iam

delivered the opinion of the Court:

This is a proceeding by bill in equity to enforce a mechanics’ lien filed by complainants against the owner, Mrs. Elizabeth A. Dodge, to secure them the payment of money due from Kenderdine & Paret, the contractors.

The defendant and her husband demur and assign as tlieir first ground of demurrer want of privity of contract between the plaintiffs and defendant, Mrs. Dodge.

But we think it is not within the contemplation of the statute that there should be any privity of contract between the subcontractor, the material man and laborer on the one hand, and the owner of the property on the other. It is sufficient to give them a status to sue that there has been a contract by the owner with somebody to improve the property and that the party claiming a lien should either have furnished materials under a contract with the principal contractor, or be a subcontractor for the doing of some of the work, or be simply a laborer employed either by the contractor or subcontractor. The purpose of the statute evidently is to put the contractor, the subcontractor, the material man and the laborer upon an equality with reference to a lien upon the property, each having an equal right to claim and to enforce it, upon showing that he comes within the definition of the statute, either as a contractor, subcontractor, material man or laborer.

Another ground of demurrer is based upon the words to be found in the caption or title of the bill, “ for the use of David L. Morrison,” which it is contended, imply an assignment to Morrison; and it is argued: first, that as a matter of law an assignment of a mechanics’ lien cannot be made; and second, that if it can be made, it is not enforceable in the name of these complainants, but must be enforced by Morrison, the assignee. The caption of the bill, however, is no part of it, and the mere addition thereto of the words, “to the use of David L. Morrison,” cannot be considered as a statement of fact or averment to which the Court can look upon a demurrer to the bill. There is nothing therefore in the record to show that any assignment has been made; on the contrary, it is distinctly averred in the bill that the parties “sue in their own right.” Hence it is unnecessary for us to decide whether the words, “to the use of David L. Morrison,” imply that aii assignment had been made, and, if so, that a mechanics’ lien can or cannot be assigned.

It is also objected that the contract price is not stated in the bill, but we do not think that is a necessary allegation. The statute merely requires that the lien shall not be enforced for an amount in excess of the original contract price; this is a matter to be determined upon the hearing of the cause. If the claim be larger than the contract price, the defendants may, by their answer, set'that up as a defense. It is not necessary that the bill shall on its face show the fact.

We think the demurrer is not well taken, and it is accordingly overruled.  