lien is claimed, although the landlord subsequently consented to their being made and agreed to loan the money to the tenant to aid him in making them. 7. B. Alfree Mfg. Co. v. Henry, 96 Wis. 327 (71 N. W. Rep. 370). Ky. Stat. 1894, § 2466, construed and applied-right of one making improvements for lessee to remove them on forfeiture of the lease.

Schaefer-Meyer Brewing Co. v. Meyer, Ky. (40 S. W. Rep. 685). A lien cannot be enforced for materials furnished to a son, under a contract with him to make improvements on land belonging to his father which he is farming for his father and in making the improvements is acting as a bare licensee, without any authority either express or implied, to bind his father for the purchase price of any material. Hoag v. Hay, 103 Ia. 291 (72 N. W. Rep. 525).

Sec. 538. Improvements by husband of owner. Where a husband agrees with his wife to make improvements on her land at his own expense, one furnishing him material cannot enforce an equitable lien against the land where the same was charged to the husband. Poe v. Ekert, 102 Ia. 361 (71 N. W. Rep. 579). The mere fact that a wife knew that the material purchased by her husband on credit was used in the construction of her house, does not furnish ground for enforcing a mechanic's lien against her property for the price of the material where she furnished him the money to pay for it and had no knowledge that it was purchased on credit. Young v. Swan, 100 Ia. 323 (69 N. W. Rep. 566). Applying Ill. Act, July 1, 1874, § 1, which gives the right to a lien only where labor or material is furnished by a contract with the owner of the land, it is held that a lien cannot be claimed for improvements made under a contract with the husband of the owner of the land where the contract is made under seal in his name. Walsh v. Murphy, 167 Ill. 228 (47 N. E. Rep. 354). Where a wife gave her husband a power of attorney to execute leases of, and collect rent from her property, and he executed a contract in her name as attorney in fact for the repair of such property, of which contract and the services rendered thereunder she had knowledge, a mechanic's lien may be enforced by the person making the repairs. Richards v. John Spry Lum. Co., 169 Ill. 238 (48 N. E. Rep. 63).

Pay

Sec. 539. Subcontractors and material men. ment by the owner to a contractor during the time allowed subcontractors to perfect their liens cannot affect their rights. Caulfield v. Polk, 17 Ind. App. 429 (46 N. E. Rep. 932). In Massachusetts it is held that when a landowner contracts with a builder to furnish materials and construct a building on his land, he impliedly gives such consent to the employment of laborers as will give them the right to a lien for their services. Daly v. Legate, 169 Mass. 257 (47 N. E. Rep. 1013). A lien may be enforced for belting for machinery constituting a fixture in a building. N. H. Pub. Stat., ch. 141, §§ 10, 16, construed and applied. Graton & Knight Mfg. Co. v. Woodworth-Mason Co., N. H. (38 Atl. Rep. 790). A subcontractor's claim of lien for excavating a cellar cannot include a charge for hauling away the dirt, which labor was performed by a third party who took the dirt for his pay. Perry v. Potashinski, 169 Mass. 351 (47 N. E. Rep. 1022). The right to a lien for materials sold and delivered to be used in a particular building, is not affected by the fact that they were not used in such building. Lee v. Hoyt, 101 Ia. 101 (70 N. W. Rep. 95); Maryland Brick Co. v. Dunkerly, 85 Md. 199 (36 Atl. Rep. 761). One furnishing materials to a contractor with which to complete a sewer for a city, does not thereby acquire a lien on a portion of the contract price due the contractor from the city. Hicks v. Roanoke Brick Co., 94 Va. 741 (27 S. E. Rep. 596). Where a contractor forms a partnership after the execution of his contract to erect a house, and the subsequent contracts necessary to the performance of his contract are made with materialmen in the firm name with the knowledge of the landowner, the firm will be treated as principal contractors, within S. & B. Ann. Wis. Stat., § 3315, so as to entitle a subcontractor to a lien. Van Horn v. Van Dyke, 96 Wis. 30 (70 N. W. Rep. 1067). A lien may be claimed for labor performed by a subcontractor in the preparation of materials intended and designed for use in a particular building and which are so used, although the labor was not performed on the premises where the building was erected. Daley v. Legate, 169 Mass. 257 (47 N. E. Rep.

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Sec. 540. Subcontractors and material men-How far rights of are affected by payments to, or contracts with the principal contractor. A subcontractor's right to a lien is not affected by the failure of the contractor to complete the building, where the labor or materials for which the lien is claimed have actually gone into the building. Red River Lum. Co. v. Friel, 7 N. Dak. 46 (73 N. W. Rep. 203). A provision in a building contract for the erection of a state building, providing that the balance of the contract price shall be paid as soon as the board of control are satisfied that the said work has been completed and are assured against the existence of any mechanics' liens on said buildings," is not for the benefit of materialmen or mechanics, but solely to protect the state, and materialmen or mechanics have no interest in, or control over, any balance found to be due. Campbell & Cameron Co. v. Carnegie's Estate, 98 Wis. 99 (73 N. W. Rep. 572). In order that a subcontractor may acquire a mechanic's lien, it is not necessary that his contract and his performance of the same should conform in all respects to the contract between the contractor and the owner; and where materials furnished by a subcontractor and used in a building were inferior in quality to those called for by either contract, it is held that the landowner had no defense against the lien except such as could have been interposed by the contractor against a claim for personal judgment against him. Wisconsin Red Pressed Brick Co. v. Hood, 67 Minn. 329 (69 N. W. Rep. 1091; 64 Am. St. Rep. 418). Applying Cal. Code Civ. Proc., § 1184, it is held that where the contract price is less than $1,000, the parties may contract for the payment of the whole amount at any time, and where the contract provided for the payment of the whole amount when the building was completed, and the contractor abandoned his contract before the completion of the building which was completed by the owner, it is held that the amount available for the liens of subcontractors and materialmen is the excess remaining in the owner's hands of the contract price after the payment of the cost of completion. Denison v. Burrell, 119 Cal.180 (51 Pac. Rep.1). Mich. Laws, 1891, No.179; 1893, No. 199, § 5, applied-effect of payment by owner to contractor. Munroe v. Merrill, 113 Mich. 491 (71 N. W. Rep. 850).

An agreement by the contractor with the owner that " no lien shall be filed against the building by either the contractor or subcontractors," is binding on both the contractor and subcontractors. Morris v. Ross, 184 Pa. St. 241 (38 Atl. Rep. 1084). Following, Schroeder v. Galland, 134 Pa. St. 277 (19 Atl. Rep. 632; 19 Am. St. Rep. 691; 7 L. R. A. 711). In Massachusetts it is held that a subcontractor's right to a lien is not affected by his principal contract with the owner or the status of his account with him. Daley v. Legate, 169 Mass. 257 (47 N. E. Rep. 1013); Perry v. Potashinski, 169 Mass. 351 (47 N. E. Rep. 1022). A provision in a building contract that the contractor " agrees to pay for

all labor and material and allow no liens to be filed on said building, and the said proprietor reserves the right to pay for and discharge any liens that may be filed out of sums due said contractor," is held not to bar subcontractors, laborers, and materialmen of the right to claim liens upon the building. Miles v. Coutts, 20 Mont. 47 (49 Pac. Rep. 393). In reaching this conclusion the court expresses grave doubts as to the power of the contractor and the owner of a building, by contact between themselves alone, to deprive all other persons who labor or furnish materials in the construction of a building of their right to claim and enforce a lien thereon, without their assent, and upon this point the court say: "While it must be conceded that a majority of the decisions hold that a clearly expressed covenant in a contract between the contractor and the owner, that no liens shall be allowed against the building, will bind the contractor and all other persons performing labor or furnishing materials in the construction of a building, still that doctrine cannot be claimed to be the settled rule of law on the subject. In Whittier v. Wilber, 48 Cal. 175 (a suit by material men), where the contractor had contracted with the owner, among other things, to save the premises from any liens, and which contract was pleaded by the owner, the court said: 'And in such cases the contractor and owner cannot deprive the material man of his lien by introducing a stipulation into the building contract, by which the contractor agrees to indemnify the owner against any lien by persons furnishing materials to be used in the construction of the building.' Norton v. Clark, 85 Me. 357

(27 Atl. Rep. 252), is a strong case on this point. We are not prepared to hold, notwithstanding the majority of decisions be that way, that rights conferred upon a person by statute may be contracted away by a contract made by others, to which he has never assented, and of which he has no knowledge. We think such a construction of our statute in relation to mechanics' liens is unauthorized, and would result in defeating the end had in view by its enactment, by practically depriving the persons sought to be benefited of all protection under its provisions."

Sec. 541. Subcontractors and material men-Contractor's agreement to take his pay in property.-Effect upon their right to liens. To entitle a subcontractor to a lien upon the owner's real estate, under Neb. Comp. Stat., ch. 54, art. 1, § 2, the owner must be indebted in money to the contractor and the contractor must be indebted in money to the subcontractor; and where the contractor has waived his right to a lien by an agreement to take a conveyance of real estate as his pay for making an improvement upon other real estate, the subcontractor is not entitled to a lien. Frost v. Falgetter, 52 Neb. 692 (73 N. W. Rep. 12). The court say: "The reason for this rule and this construction is that there is no privity of contract between a subcontractor and the owner; and the right of a subcontractor to a lien against the premises of the owner, though conferred by statute, is in subordination to the contract existing between the owner and contractor. All the authorities are agreed that a subcontractor is bound to take notice of the terms of the contract existing between the owner and the contractor; and, if that contract is of such a nature as to preclude the contractor himself from asserting a lien, the subcontractor's right to a lien fails. See the subject discussed generally in Bowen v. Aubrey, 22 Cal. 566; Shaver v. Murdock, 36 Cal. 293; Henley v. Wadsworth, 38 Cal. 356; Dingley v. Greene, 54 Cal. 333. In Lumber Co. v. Murphy, 64 Ia. 165 (19 N. W. Rep. 898), the supreme court of that state, in discussing the question under consideration, said: 'Now, while it may be that a mere stipulation on the part of the contractor not to claim a mechanic's lien would not preclude subcontractors from doing