majority">Carpenter, J.

The plaintiff, a lumber dealer, contracted with one Sanger, a builder, who had contracted with the defendant to build for him a house and barn, to furnish lumber for the erection of the buildings. He commenced furnishing materials on the 26th day of May, 1885, and continued so to do under the same agreement until the first day of October. Not being paid m full, on the 9fch day of October he gave the defendant written notice that he commenced furnishing materials on the 26th day of May and ceased doing so on the 1st day of October; that the value of the *330materials so furnished was $1,155.50; that of the whole amount furnished $155.96 worth was furnished after the 11th day of August, 1885 ; that all of the materials were actually used in the construction of the buildings; and that the sum of $341.37 was then due thereon from Sanger to him, and that he intended to claim a lien on the premises for that sum. On the 'same day he lodged a lien certificate with the town clerk which was duly recorded.

In an action to enforce the alleged lien the Court of Common Pleas rendered judgment for the defendant and the plaintiff appealed.

The plaintiff now abandons his claim for $341.37, and claims only to recover the .amount furnished after August 11th—$155.96.

The statute (Gen. Statutes, § 3020), is as follows:—“ No person other than the original contractor for the building, or a sub-contractor whose contract with such original contractor is in writing, and has been assented to in writing by the other part}'- to such original contract, shall be entitled' to claim any such lien, unless he shall, within sixty days from the time he shall have commenced to furnish materials or render services, give written notice to the owner of such building that he has so commenced to furnish materials or render services, and intends to claim a lien therefor on said building,” etc.

There is no uncertainty and no ambiguity about this language. The plaintiff has told us, in language not to be mistaken or misunderstood, when he commenced to furnish materials, and this court is not at liberty to say that he commenced on each and every day thereafter so long as he continued to furnish them. That would be a perversion rather than a construction of the statute, which required notice to be given within sixty days next following May 26th. It was not in fact given until October 9th, eight days after the plaintiff ceased furnishing materials. No argument can make it plainer that that was not a compliance with the statute.

In one of three ways only can the plaintiff’s claim be sus*331tained:—by disregarding the plain terms of the statute, by construing it as meaning something entirely different from what it says, or by regarding the commencement to furnish materials as August 11th instead of May 26th. We are not asked to disregard the statute. The proposition to give it a meaning essentially different from that which its language imports, and which is not fairly included in the words used, cannot be entertained. To sanction the plaintiff’s claim will be in effect to make it read thus :—“ Any person furnishing materials for the construction of a building may at any time give the owner notice, etc., and shall thereby be entitled to a lien for all materials furnished within sixty days next before giving such notice,” etc. While the statute may have that effect in some cases, it is obvious that in many cases it cannot unless its terms are enlarged and extended. If a privilege so broad had been intended, language adequate to express such intention would have been used. It was not the object of the statute to define the retroactive effect of the lien, but to fix a definite precise time within which notice should be given. The required notice is not designed as a limitation of the lien, but as a condition precedent to its existence.

Can we, without distorting the facts,.regard the commencement as August 11th? The record shows that the plaintiff’s claim arose from one, and only one,- contract with Sanger. There was not a separate contract for each load, or each day’s, week’s or month’s supply. Any attempt to regard the supplies furnished before August 11th as under one contract, and those furnished after that date as under another, is unwarranted. All were furnished under the same agreement, and the commencement was May 26th.

The supplies furnished by the plaintiff amount to $1,155.50. Of that amount the sum of $814.13 has been paid. If we allow the plaintiff’s claim we must apply all the payments to the materials furnished before August 11th; or, what is the same thing, we must assume that no portion of those furnished after that date have been paid for. That is to say, the law will make an application of payments, not to one of *332several distinct obligations, but to a portion of one entire debt; and that for the purpose of giving the plaintiff a lien on the property of the defendant for a debt due to him from a third person, simply because he failed to acquire such lien by a non-compliance with the statute. We are aware of no principle by which such a proceeding can be justified. The plaintiff has no equities superior to those of the defendant. The law, aside from the statute, creates no lien in these cases; and the courts cannot be expected.to favor the existence of a lien in cases not fairly within the terms of the statute. The payments were made on one contract to be applied on one debt. There were not several outstanding obligations, and hence there could be but one application. There was no occasion for Sanger to direct nor for the plaintiff to elect. Nor are we warranted in saying that the pay'ments or any of them shall be applied in payment' of any particular portion of the supplies furnished. That is something we know nothing about. The parties have not told us, and there is no room for presumption beyond this, that if the case called for it, j ustice required it, and" we had sufficient data, we should doubtless apply each payment to goods previously delivered. But nothing in this case calls for such action by the court. We do not know when these payments were made. It is legally possible that they were made after-all the materials were delivered. If so the application may as well be to one portion of the debt as another. The law is silent on that subject because it has no occasion to speak. Legally speaking the defendant now has just as good a right to insist that the pajunents shall be applied to the items last delivered, that the plaintiff has to insist that they shall be applied to those first delivered. But that is a controversy the law will not settle. Had timely notice been given the whole demand would have been within the protection of the lien, and this matter would have been immaterial. The neglect of the plaintiff to comply with the law does not make it material. The plaintiff has' no superior equities which call upon the court to interfere in his behalf. The statute gives him a lien, but only on condition that he com*333plies-with its provisions. It is not a common law right and therefore a reasonably strict compliance is essential. He failed to comply and therefore lias no lien.

There is no error in the judgment complained of.

In this opinion the other judges concurred.

Citation profile

How this case has been treated — in progress