Rep. (Mo.) 995; Bangs v. Burg, 48 N. W. Rep. (Iowa) 90; McCristal v. Cochran, 23 Atl. Rep. (Pa.) 444; 29 W. N. C. 340; Reeves v. Henderson, 18 S. W. Rep. (Tenn.) 242; Bardwell v. Anderson, 32 Pac. Rep. (Mont.) 285.

Courts will not permit justice to be defeated where parties seeking a remedy have substantially complied with the law. Harland et al. v. Stuffbeam et al., 25 Pac. Rep. 686.

A person who knowingly permits any person to order improvements to be made for his premises, is liable to the mechanic or material man for the value thereof unless he relieves himself in the manner provided in section 1529, Compiled Laws, 1884. West Coast Lumber Co. v. Apfield et al., 24 Pac. Rep. 993.

JOHNSTON & FINICAL for appellant, Mountain Electric Company.

NEILL B. FIELD for appellees.

As to statutes on the subject of mechanics' liens see sections 1519, 1535, Compiled Laws, 1884.

Miles was not the owner or the agent of the owner within the meaning of the statute. The word "owner" as used in section 1520 of the statute does not mean necessarily the owner of the fee in the land upon which the improvements are made. The owner within the meaning of that section may own less than a fee simple estate. Sec. 1522, Comp. Laws, 1884; Francis v. Sayles, 101 Mass. 435; Phillips on Mechanics' Liens, secs. 83, 84, 191.

Where a bill fails to allege that the improvements were not mere trade fixtures, or that they became a part of the realty, a lien will not lie. Schettler v. Vendome Turkish Bath Co., 27 Pac. Rep. 76; Kellogg v. Littel, etc., Mfg. Co., 25 Id. 461; Baker v. Fessenden, 71 Me. 292; St. Clair Coal Co. v. Martz,

75 Pa. St. 384; Stout v. Sawyer, 37 Mich. 313; Coddington v. Beebe, 31 N. J. Law, 477.

The bill and notice are fatally defective in failing to show the relation between the owner and the person to whom material and labor were furnished, or by whom the complainants were employed. Warren v. Quade, 29 Pac. Rep. 827; Tacoma L. & M. Co. v. Wilson, Id. 829.

The facts alleged in the bill do not support a lien on the real estate. Brown v. Reno Electric Light & Power Co., 55 Fed. Rep. 229, and cases cited, supra.

on

FREEMAN, J.-These were proceedings to enforce mechanics' and material men's liens on the Armijo House, a hotel in the city of Albuquerque. They were consolidated and heard together in the court below. A demurrer was interposed by the adult defendants, which assigned, among other causes: (1) That two of the defendants were minors, and could not, therefore, either by themselves or guardians, create a lien their real estate; (2) that the notice of lien showed that the contract for work and materials was entered into by the lien claimants with Miles, who was not the owner of the real estate, without showing what relation the said Miles sustained to the owners of the realty; (3) that the petition showed that a part of the improvement or structure, viz., a dynamo, belonged to one of the defendants, while the ground on which it was erected belonged to others of the defendants. The demurrer was sustained, with leave to the complainants to amend their bill. The complainants declining to amend, the bill was dismissed. On a subsequent day of the same term of the court, however, the complainants took leave to amend their bill by striking out the names of the minors and their guardian. Leave was likewise granted to the defendants to amend their demurrer by assigning the nonjoinder of the minors as a ground thereof. This order was made nunc pro tune,

so as to relate to the day on which the demurrer was sustained. Thereupon, the bill and demurrer were considered as amended, and the bill stood dismissed.

MECHANICS' liens:

murrer: suf

ficiency.

The statute (Comp. Laws, sec. 1524) requires the lien claimant to set out in his notice, inter alia, the name of the person by whom he was employed, or to whom he furnished the material. The notice in notice: bill: de question alleges "that George H. Miles is the name of the person who employed them to perform said labor and furnish said material." This is a literal compliance with the statute. It is insisted, however, that it does not meet the substantial requirements of the statute, in that it does not show the relation existing between Miles, who ordered the materials, and the other defendants, who are the owners of the property to be charged with the lien; that, as the notice is the foundation of the action, it must contain within itself averments sufficient to charge the property with the lien, and must therefore show that the party contracting for the labor or materials was an authorized agent of the owners of the property sought to be charged; that otherwise a mere stranger might, without the knowledge of the owner, create a charge upon the property. In support of this contention, we are referred to the cases of Warren v. Quade, 29 Pac. Rep. 827, and Manufacturing Co. v. Wilson, Id. 829, wherein the supreme court of Washington, construing a statute identical with ours, held that the notice must show the relation between the owner and the person to whom the materials were furnished. "It will be further seen," say the court, "from said notice, that the goods. were not furnished to the owner directly, but were furnished to a firm named in the notice. In such a case, we think that the statement of terms and conditions of contract should show that such a relation existed between the firm to which they were furnished and the owner, as will bring it within the list of those who, VOL. 7 N. M.-21

under the lien law, could, for the purposes thereof, bind the owner." We can not accept this as a sound construction of our lien laws. Section 1520, Compiled Laws, provides that a lien shall attach whether the materials are furnished or labor done "at the instance of the owner of the building and every contractor

charge of the construction

or his agent;

or other person having shall be held to

be the agent of the owner for the purposes of this act." Section 1524 requires the claimant to file for record his claim, prescribing what shall be set out in said claim. The appellants filed their claim as required by the statute, setting out everything required by the statute; among others, the name of the party at whose request the materials were furnished. This party, the bill states, was "in charge of the construction, improvements, alteration, and labor" on the building. If this is true, the statute makes him the agent of the owner "for the purposes of this act." It is insisted, however, that the bill can not be looked to, with a view to correct any error or omission contained in the notice. This would be true as to any positive and substantial defect, but there is none. The statute does not require that the lien claimant shall advise the owner that the lien was created by virtue of a contract made with his (the owner's) agent. It requires the claimant to give the owner the name of the party with whom the contract was made, and thereupon it becomes the duty of the owner, within three days after he shall have obtained knowledge of the contract, to give notice that he will not be responsible for the same. Comp. Laws, sec. 1529. Aside from the fact that the statute does not require the lien claimant, in his notice, to advise the owner of the relation existing between him and the claimant, what good purpose would such information serve? If the party claiming to be the agent of the owner is not in fact his agent, but a mere volunteer, no

one is in a better position to know that fact than the owner, and the statute affords him an opportunity to protect himself against any contract made by such unauthorized party. He has only to give the lien claimant notice that he will not be responsible for the contracts of such party. But suppose it should occur, as a matter of fact, that such contractor was not the agent of the owner, but a mere volunteer. If, under such circumstances, the owner should allow him to contract debts for supplies on the credit of his supposed agency, without giving the mechanic or furnisher the required notice, then, in equity and good conscience, he ought to be bound by such contract. The mechanic, in good faith, contracts with the supposed agent, gives the owner notice of the fact, and that he intends to claim a lien for his work. The owner remains silent until the work is done, and then seeks to defeat the lien because the supposed agent was not authorized to make the contract, or, as in this case, because the lien claimant did not advise him that the contractor was his agent. We do not think this reasoning sound. A substantial compliance with the statute is all that is required (Phil. Mech. Liens, p. 570); and, without undertaking to reconcile the somewhat conflicting authorities as to whether statutes, creating liens in favor of mechanics and material men should receive a strict or liberal construction, it is enough to say that our statute does not require the lien claimant to state in his notice the relations existing between the party contracted with, and the owner of the land or improvements. Besides which, no good reason seems to exist why he should give the owner such information. It may be that the mechanic does not know what relation exists between the parties, and the very purpose of the notice may be, in part at least, to ascertain from the owner whether the party contracted with is authorized to create the debt. Should the owner, promptly, as