direct benefit, there must be something in the nature of a direct dealing between the contractor and the person whose interest is sought to be charged. Graham v. Williams (1884) 8 Ont. Rep. 478, affirmed in (1885) 9 Ont. Rep. 458; Gearing v. Robinson (1900) 27 Ont. App. Rep. 364; Eddy Co. v. Chamberlain (1917) N. B., 37 D. L. R. 711. It is, however, doubtful whether these cases mean that direct dealing is essential to consent. They seem rather to lean to the view that consent in itself is not sufficient to give the lien.

b. Illustrative cases.

1. Improvements or repairs by lessee. Where lessees put in certain partitions which were so put in that they could be and were removed by the lessees and were not useful or necessary to the leased store as a store, since the lessor had no right to object thereto consistently with the right of the lessees, the mere fact that the lessor's treasurer and general manager was about the premises and saw the partitions being put in, and made no objection, did not show consent. Hanson v. News Pub. Co. (1902) 97 Me. 99, 53 Ala. 990.

So, the mere fact that the owner knows that one holding a lease for a long term of years contemplates making certain improvements for purposes of trade, which he has no power to prevent, and from which he can derive no ultimate benefit, will not subject his interest to a lien. "It never could have been the intention of the legislature to make such owner liable, and it is doubtful, if they had attempted to do so, whether it lies within their power." Havens v. West Side Electric Light & P. Co. (1892) 49 N. Y. S. R. 771, 20 N. Y. Supp. 764, affirmed in (1894) 143 N. Y. 632, 37 N. E. 827.

And though a lessor must have known at the time he leased premises for use as an athletic field, that the lessee intended to erect buildings thereon in order to use the premises for such purpose, this would not support a finding of consent, where all structures or buildings erected by the

lessee were to belong to and be removable by it. Rice v. Culver (1902) 172 N. Y. 60, 64 N. E. 761, reversing in part (1901) 57 App. Div. 552, 68 N. Y. Supp. 24, 9 N. Y. Anno. Cas. 286.

And a lessor's knowledge that improvements were being made by the lessee, and his acquiescence therein, does not constitute the required consent, where the lease contains no covenant by the lessor to repair, and the tenant has an absolute right to make the repairs without the consent of the lessor. McCauley v. Hatfield (1894) 59 N. Y. S. R. 552, 28 N. Y. Supp. 648.

And where the tenant was not required by the lessors to make any improvements, and no permission to make them was especially given, and it did not appear that the lessors wanted them made, they did not consent within the meaning of the statute, though, at the time the lease was executed, they probably knew that the lessee intended to make improvements consisting mainly of the removal of certain partitions, for the purpose of making the rooms larger, and painting and plastering such rooms, and though they or their agent watched the improvements and even passed upon them, and at the expiration of the lease the improvements became their property. Garber v. Spivak (1909) 65 Misc. 37, 119 N. Y. Supp. 269.

And even though the lease required the lessee to make all repairs, and the plans for certain contemplated repairs were submitted to the lessor before the lease was signed and approved, consent to the performance of the labor or furnishing of the material could not be inferred where none of the lienors had any transaction with the lessor, or saw or had any communication with him, except that one of them saw him on one occasion while he was working on the building, and was asked by him about a detail of the work. Sunshine v. Morgan (1902) 39 Misc. 778, 81 N. Y. Supp. 278.

One leasing premises by a lease which requires the lessee to build an addition to the building and put the old building in repair at his own expense, and who lives near the premises during the time an underlessee is

making repairs on the main building which are apparent to anyone passing, does not consent to the contract of the underlessee for such repairs, so as to subject the fee to a mechanics' lien therefor. Francis v. Sayles (1869) 101 Mass. 435. The court said: "It would be a great stretch of construction to say that the lessor whose demise really has the effect of an alienation so long as the term lasts, and who has parted with the control of the property during that time, agrees or consents or authorizes anyone to consent for her to the contract under which the petitioners claim.

The most that can be said would be that she did not object to proceedings by her lessees which she may have had no power to prevent if she had the wish to do so."

Where there were findings that the respondent executed a lease containing a covenant on the part of the lessee to make all necessary repairs and alterations at his own expense; that labor was performed and materials furnished by the petitioner in making repairs and alterations under an agreement with the lessee; that the respondent had consented prior to the lease as well as in the lease to the making of repairs and alterations of a character like those which were made; and that the labor was performed with his consent, but that he had no knowledge of any particular contract with the petitioner until a .certain date, after which time he occasionally saw him at work, the court said that there was no agreement with or consent of the owner of the building or any person having authority from or acting for him, and that the petitioner had no lien. Conant v. Brackett (1873) 112 Mass. 18.

Where the lease required the lessee to make certain changes and improvements at his own expense, but he made far more extensive improvements, costing an amount largely in excess of the cost of the required improvement, the mere fact that the lessor and her husband, while the work was in progress, were frequently in the vicinity and saw the work going on, but made no inquiry as to the probable

cost of the alterations specified in the lease, and no objection to the manner in which the requirements of the lease were fulfilled, did not show consent within the meaning of the statute. De Klyn v. Gould (1901) 165 N. Y. 282, 80 Am. St. Rep. 719, 59 N. E. 95. The court said: "Here the owner carefully stated in the lease her position with respect to alterations and improvements, and it may be assumed that both the amount of the rent and the length of the term were influenced by the tenant's agreement to make the specified repairs. She never was

asked to declare her position with respect to the important and expensive departure by the tenant from the specifications, and she misled neither the tenant nor the contractor. Undoubtedly she consented to such alterations and additions as the lease called for, but as the terms of the lease accompany that consent, we cannot separate it from them. She could accept the larger performance by the tenant as satisfactory performance under the lease, and in the absence of evidence that she did more, we cannot enlarge the scope of her acceptance in order to make her bear a greater liability than she ever consented to incur."

It will be noted that some of the cases just referred to apparently assume that a stipulation in the lease requiring the lessee to make repairs, or even improvements, is not in itself a sufficient consent to satisfy the statute; and while there may be cases holding that such a stipulation is a sufficient consent, no attempt has been made to collect such cases or to compare them with those herein cited, as that question is believed to be outside the scope of this note.

Under the statutes of Ontario and New Brunswick, which subject the owner's interest to a lien for work done or materials furnished with his "privity or consent," it is held that a lessor's knowledge that materials are being furnished to a lessee having an option to purchase, and a right to build and improve the land, or a lessee's knowledge that work is being done under a contract with a sub

The question as to the effect of the owner's knowledge of a contract made by his tenant for labor and materials is also referred to in Reppard v. Morrison (1904) 120 Ga. 28, 47 S. E. 554, but was not decided, as the jury had found that there was no assent, express or implied.

2. Improvements or repairs by vendee.

A contract by the owners for a sale of land, notice to them that the vendee intends to build upon it, and knowledge of the progress of the work charges them with no responsibility for it to anyone, and gives a person employed by the contractor erecting the building no right to a lien against them under a statute requiring an agreement or consent, express or implied, on the part of the owner whose interest in the land is sought to be charged with the lien. Hayes v. Fessenden (1870) 106 Mass. 229.

That a vendor knew that labor was being furnished for a house being built by an executory purchaser, and spoke with the purchaser about furnishing a frame for the house, did not import consent on his part in such sense as to satisfy the Massachusetts statute. Consent means conduct expressive of consent, and silence may be such conduct under some circum

stances; but as the party furnishing

the labor did not know that the owner was the owner, and the owner did not know who was doing the work or under what contract he was doing it, or that a lien was or might be claimed by anyone, his silence ought not to have such a meaning attributed to it. Saunders v. Bennett (1893) 160 Mass. 48, 39 Am. St. Rep. 456, 35 N. E. 111. The case, said Justice Holmes, was not like that where the contract between the owner and purchaser required the latter to build, and thus by implication authorized him to employ the necessary workmen.

And where vendors retained the 4 A.L.R.-44.

deeds as security for the purchase price, and they had nothing to do with the contract for the erection of a building thereon for the purchaser, and did not in any way authorize any work to be done on the land in such a way as to create a charge upon their interest in it, or consent to the erection of the building otherwise than upon the sole credit of the purchaser or its contractor, no lien was acquired until the delivery of the deeds, though they knew of the purpose to erect the building, and knew of its erection as the work went on. This did not show their consent within the meaning of the statute as matter of law. As the case was submitted on an agreed statement of facts, from which the court was not authorized to draw inferences, the court refrained from deciding whether such consent could be inferred from the facts stated, as a matter of fact. Courtemanche Blackstone Valley Street R. Co. (1898) 170 Mass. 50, 64 Am. St. Rep. 275, 48 N. E. 937. It was, however, held, that the purchaser's consent to the continuance of work after delivery of the deeds was a consent to the whole work, and entitled the petitioner to a lien therefor; pointing out, however, that there were no intervening rights of third persons.

v.

Where a contract of sale authorized the vendee to remove a cottage to another part of the lot, but did not bind him to remove it, or to alter or repair, the vendor's interest could not be charged with a mechanics' lien for repairs and improvements thereon

simply because, knowing that the work was to be done, and was being done, she did not try to stop it. Vosseller v. Slater (1898) 25 App. Div. 368, 49 N. Y. Supp. 478, affirmed in (1900) 163 N. Y. 564, 57 N. E. 1128. The court said: "The vendor, Mrs. Slater, had no power to compel the vendee to remove the cottage, or to control the vendee as to what repairs should be made upon it, at what expense, or by whom. The alterations were not made for her benefit, and, as it turned out. they were made to her great injury, as the undisputed evidence is that the

premises as altered were not worth as much as they were before the change, and could not be rented for as much as formerly. It would be a most unusual statute and of doubtful validity which should provide that in case a vendor sells real estate by an ordinary, executory contract of sale, knowing that the vendee intended to erect a building thereon, the vendor's interest should be charged with a lien for the expense of erecting a building, and so improve the vendor out of his estate."

And though an owner of land had knowledge that a well was being drilled thereon by plaintiff under a contract with a third person, he did not consent to the doing of the work so as to subject the property to a lien where the third person had agreed to drill the well at his own expense, and the owner so informed plaintiff. Clark v. North (1907) 131 Wis. 599, 11 L.R.A. (N.S.) 764, 111 N. W. 61, 11 Ann. Cas. 1080. The relation of the third person to the owner does not appear, except in the complaint as set out in the opinion it is alleged that the owner "optioned" the land to the third person.

Where a contract of sale provided that the vendee should have the right of immediate possession for the purpose of erecting buildings on the land, the vendor's knowledge that the vendee intended to improve the property by the erection of a building was insufficient to establish its consent to the erection of any building which the vendee erected, in the absence of proof of its knowledge as to the character of the building being erected, of the erection of the building actually constructed, or of its acquiescence therein. Beck V. Catholic University (1902) 172 N. Y. 387, 60 L.R.A. 317, 65 N. E. 204.

There is no consent by a vendor to improvements by a vendee where, upon discovering that he is making such improvements, the vendor objects and insists that the work must stop until the vendee has performed the contract of purchase and become entitled to a deed to the property and to the possession. Cowen v. Paddock

(1893) 137 N. Y. 188, 33 N. E. 154, affirming (1891) 62 Hun, 622, 43 N. Y. S. R. 342, 17 N. Y. Supp. 387.

In Jodd v. Duncan (1880) 9 Mo. App. 417, it was held that one who entered into possession under a contract of purchase and erected buildings might be regarded as an owner within the meaning of the Mechanics' Lien Statute, and, as such, might bind his equitable interest in the land; and that if the contract to purchase the land was not carried out, the expectation of title would fail, and the fact that the owner knew that the building was being erected and did not dissent, ought not to be construed into an assent that the land should be chargeable with the lien. The statute, how. ever, does not seem to have contained any provision for a lien for improvements made with the owner's consent, but required the improvements to be made under a contract with the owner or his agent.

In Boyers v. Hendricks (1883) 4 Ky. L. Rep. 735, involving improvements by a vendee under a parol contract which had been rescinded, it was said that where the vendor had stood by and remained silent while the improvements were being made, he could not resist the lien, independent of any statutory provision on the subject. The statute then in force, however, expressly provided for a lien on the rescission of such a contract to the extent of the enhancement in value.

c. Contrary decisions.

While no case involving improvements by a lessee or vendee has been found in which the court based a finding of consent solely on the owner's knowledge and failure to object, some of the New York cases decided prior to De Klyn v. Gould (1901) 165 N. Y. 282, 80 Am. St. Rep. 719, 59 N. E. 95, showed a tendency to treat knowledge and failure to object as strong evidence of consent. Cowen v. Paddock (1891) 62 Hun, 622, 43 N. Y. S. R. 342, 17 N. Y. Supp. 387, affirmed in (1893) 137 N. Y. 188, 33 N. E. 154; National Wall Paper Co. v. Sire (1900) 163 N. Y. 122, 57 N. E. 293, 7 N. Y. Anno. Cas. 406; Kealey v. Murray (1891) 40 N. Y. S. R. 23, 15 N. Y. Supp. 403;

Mason Ice Mach. Co. v. Upham (1898) 26 App. Div. 420, 50 N. Y. Supp. 197 (especially the concurring opinion); Rice v. Culver (1901) 57 App. Div. 552, 68 N. Y. Supp. 24, 9 N. Y. Anno. Cas. 286, rehearing denied in (1901) 57 App. Div. 637, 68 N. Y. Supp. 1147, reversed in part in (1902) 172 N. Y. 60, 64 N. E. 761. And see also the following cases, in which, however, the relation was not that of lessor and lessee, or vendor and vendee: Husted v. Mathes (1879) 77 N. Y. 388; Nellis v. Bellinger (1876) 6 Hun (N. Y.) 560; Hellwig v. Blumenberg (1889) 5 Silv. Sup. Ct. 290, 28 N. Y. S. R. 75, 7 N. Y. Supp. 746; Dennis v. Walsh (1891) 41 N. Y. S. R. 103, 16 N. Y. Supp. 257.

Thus, in National Wall Paper Co. v. Sire (1900) 163 N. Y. 122, 57 N. E. 293, 7 N. Y. Anno. Cas. 406, supra, O'Brien, J., said: "We may, therefore, fairly deduce from the decisions of this court upon the question now under consideration the following propositions: (1) That no express consent is necessary on the part of the owner in order to bring the case within the statute providing for mechanics' liens. (2) That a consent may be implied from the conduct and attitude of the owner with respect to the improvements which are in process of construction upon his premises. (3) The facts from which the inference of consent is to be drawn must be such as to indicate at least a willingness on the part of the owner to have the improvements made, or an acquiescence in the means adopted for that purpose, with knowledge of the object for which they are employed. (4) The cnission of the owner to object to improvements made upon his premises by a tenant when he has knowledge of the circumstances under which they are being made is always an important fact bearing upon this question." The finding of consent in that case, however, rested upon facts far more persuasive than mere failure to object, and in De Klyn v. Gould (N. Y.) supra, the court practically limited its application to those facts.

In Shaw v. Young (1895) 87 Me. 271, 32 Atl. 897, the court said:

"It

seems to be assumed by the legislature that the owner of real estate will be vigilant in caring for it either in person or by agents; that if he leaves it in the possession of agents or tenants, knowing that repairs are necessary to be made from time to time, and makes no provision for them, but leaves them to be made by agents or tenants, and gives no notice of dissent, his consent may be inferred so far as the lien claimants are concerned." The court, however, limited the holding to ordinary, preservative repairs, and it appeared that the lease originally provided that the lessee would make inside repairs and the lessor outside repairs, but that at the time of a transfer of the lease, when repairs were needed for the preservation of the building and to keep up its earning powers as a hotel, the matter of repairs was talked over between the assignee and the managing owner, and they had an understanding that the assignee would make repairs both inside and outside, and he and another of the owners saw the repairs being made, and made inquiry and advised to some extent with the workmen about the work. In addition the statute was somewhat peculiar in that it formerly provided for a written notice to the owner and written notice of dissent by him, and while the provision for notice to the owner had been eliminated, the provision for written notice of dissent by him had been retained.

III. Consent shown by knowledge in connection with other facts.

Where a lease provided that the tenants should put in a steam heating and elevator plant and make other repairs, at their own cost and expense, such improvements to belong to the lessors upon the expiration of the lease, and, in addition, the lessors' agent had notice of the contract which had been made with plaintiffs for the elevator, the facts warranted an inference of consent. New York Elevator Supply & Repair Co. v. Bremer (1902) 74 App. Div. 400, 77 N. Y. Supp. 509, affirmed in (1903) 175 N. Y. 520, 67 N. E. 1086. A lien was, however, denied in this