¶1The petition in this case fails to allege that any time was fixed or agreed upon by the parties, for the payment of the price of the materials furnished. That a time for payment, within the period limited by the statute, should have been fixed by the parties, was necessary to create the lien in favor of the material man, has been repeatedly held by this court. In this, the petition was clearly defective. Nor was the case in anywise aided by the evidence. To recover, the allegations and proofs must agree, at least in substance. This lien is given by statute, is in derogation of the common law, is secret in its nature, no notice being required, by record or otherwise, either to creditors or purchasers, and it should therefore receive a strict construction. This lien, like all others of the same character, should be fairly enforced, when the party brings himself within the provisions of the statute, but it should not be extended to cases falling within the reason, but not provided for by the language of the statute. Nor can well-established rules of pleading be violated to aid in its enforcement. When the pleadings and evidence show that the party is entitled to its benefits, it will be enforced regardless of the hardships it may inflict upon creditors and purchasers, unless the holder, of the lien, by some act of his, has contributed to such a result.
¶2If the petition contains an allegation, that the labor or materials furnished, were to be paid for on performance or delivery, then evidence that no time was specified for payment by the parties, would sustain the allegation. And it is for the reason, that when no time -of payment is specified, the money is due upon delivery or performance. In this case, the petition alleges that the payment was to be made in a reasonable time after the materials were delivered. The evidence fails to sustain the averment, as no such agreement was made; but on the contrary, it appears that no time was specified for the payment. And the legal effect of the contract would be, that the materials were to be paid for on delivery. This evidence shows a contract for payment at a different time from that set out in the petition, and this was a material variance between the petition and the evidence.
¶3It is likewise insisted, that by taking the note of the owner of the premises, the petitioner lost his lien. While the taking of other security, either on property or that of individuals, not parties to the transaction, would have the effect to discharge the premises from the lien, yet the mere settlement and adjustment of accounts, and taking the note of the owner of the premises, who incurred the debt, is in no sense a change of security, or security of any description. The note when taken is only evidence of the debt, and cannot be held to affect the lien. Nor do we perceive, that the fact that such a note was taken with the legal rate of interest, can in any degree change the attitude of the parties. The interest is only an incident to the debt, and is justly given as a compensation for delay in payment. No reason is perceived why the mechanic performing labor, or the material man who contributes materials for the structure, should not be as justly entitled to this compensation, as a mortgagee, judgment creditor, or other person holding a lien on real estate. The statute has not prohibited these liens from bearing interest. But the law has, in general terms, authorized parties to contract for the payment of interest on indebtedness. And we think a debt of this character is embraced in its provisions.
¶4The decree of the court below is reversed, and the cause is remanded, with leave to amend the petition, and for further proceedings.
¶5Decree reversed.