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Lien Laws
A lien is a claim which one persons holds on the property of another, as a security for some debt or charge, until the debt due to the person retaining has been satisfied. The person holding the lien may sue for the same debt, meantime retaining his lien, as collateral security. Liens are of two kinds, particular and general. A particular lien is a right to retain the property of another regarding whom the debt was contracted. A general lien is the right to retain the property of another, in respect of a general balance of account. While the goods are held under lien they cannot be seized for the real owner's debt.
Any person who in the quality of contractor, sub-contractor, or workman, furnishes any material or performs any work for the construction, the alteration, repair or improvement of any building, conformably with an agreement or contract, shall have a lien for the value of his material or labor on the building or land of the lessee, agent, or person in possession of said property, to the extent of the right, title, and interest possessed by said lessee, agent, or owner, at the time the notice of the lien was filed in the County Clerk's Court.
The notice of the lien must be filed within thirty days after the work was performed or the material furnished, and the name and residence of the claimant should be stated, together with the amount due, from whom due, to whom due, when due, and the name and a brief description of the person against whom the claim is held.
Liens hold good for only one year after being filed, unless an action is begun, or the lien is continued under an order of the court. "
Analogous to the common law liens, but deriving its full force and efficacy from statutory provisions of the several States, is the mechanic's lien, so called, and now generally in force throughout the United States. This lien is designed to aid mechanics, and workmen, such as carpenters, bricklayers, laborers by them employed, and other artificers, in securing compensation for their services, and also in a greater or less degree, according to the letter of the various statutes, to secure the wages of laborers employed by the chief contractors upon building, and other improvements, upon real property, and laborers upon railroads and other public improvements, as also the furnishers of materials." (OVERTON.)
The following classes of persons are among those generally entitled to lien : Bailees who have performed labor or services on the thing bailed, at request of the bailor; innkeepers on the baggage of guests, who have not paid for their accommodation, common carriers, on the goods carried, to the amount of the freight, and disbursements on said goods; venders, on articles or property sold for payments of price where no credit has been expressly promised or implied; agents, on goods belonging to their principals to the amount of the advancement for the latter's benefit; and all persons who are compelled by law to receive property, and bestow labor or expense on said property.
The question as to whether a lien has been created by express agreement depends upon the special terms of each particular contract. Where the intention of the contracting parties to create a lien is plain they have a legal right to carry it into effect; but where from the nature of the contract between the parties it would be inconsistent with the express terms or the plain intent of the contract, there can be no lien. The form or particular nature of an agreement by which a lien may be created is not of very great importance, as equity looks to the final intent and purpose rather than the form.
A lien being a right to retain possession of property, it follows that where there is no possession there cannot be a lien; and if the possession of the goods be once abandoned, the lien is gone also.
The right of lien may be waived by express contract, neglect, a new agreement, by permitting change of possession, or abandonment of possession. The nature and character of the lien determines the manner of the enforcement of the lien. CONTRACTS.
Contracts between employer and employee have been partly treated under the title of agency, for every servant who performs his master's business is to that extent his agent. Where a contract of hiring is made under special agreement, the terms of the latter must be strictly followed.
A general or indefinite hiring is a hiring at will, unless the servants can prove the contrary. Where a servant is hired at so much a day, week, month or year but no time being specified, the hiring is regarded as indefinite and intended only at the rate agreed on, for whatever time the party may serve. In regard to this rule there is no difference between domestic and other servants, should the servant after the term of service has expired, continue in the same employment, it is presumed that the new employment is on the same terms as the former. If an employee continues to work after the expiration of his specified term of employment, the presumption is that the new contract of hiring is on the same terms as the old. A servant employed by the day, or week, or month, may recover wages, the balance of that time, if dismissed without cause, but should the servant leave without cause, he will not be entitled to any wages. Should a servant, however be dismissed for good cause before the expiration of his term of service, he is entitled to a reasonable compensation for the work he has already performed. The causes justifying dismissal are various, but the general rule is that when a servant places himself or acts in relation to his employer in a manner inconsistent with his duties toward said employer a dismissal is justifiable, incompetency, also, is a sufficient reason for dismissal.
An employer is not liable for any injury suffered by his servant, if it did not result from the wilful neglect or misbehavior of the employer, nor is an employer liable to a servant for an injury suffered through the negligence of another servant where there is no stipulation in the agreement as to the time of payment, in the case of those who undertake to do work by the piece, it is presumed that payment will be made only when the work is completed.
A contract of hiring and service is concluded by the death of either party, or by the sickness, or any other disability on the part of the servant to perform the stipulated service.
The conditions of a contract in relation to individuals are: Age; Rationality, and in the case of corporations the possession of the necessary statutory powers. tracts.
Minors except under special limitations are incompetent to make binding con- In regard to rationality the general rule of law is that all persons who are not incompetent by reason of individual disability, or public policy, are capable of making a contract.
Corporations may make contracts, under the limitations of the general and special statutory powers by which they are regulated, or by their charters. The following species of contracts must be in writing and must be subscribed by the party to be charged thereby, otherwise they are void: All agreements that by their terms are not to be performed within one year from the making thereof; every special promise to answer for the debt, default or miscarriage of another person; all agreements, promises or undertakings, made upon consideration of marriage, except mutual promises to marry; any contract for the leasing of a period exceeding one year, or for the sale of lands, or any interest in same, shall be void, unless the contract be in writing or some note or memorandum thereof expressing the consideration be in writing and be subscribed by the party who made the lease or sale. All contracts for the sale of goods, chattels or things in action shall be void, unless, a note or memorandum of said contracts be made in writing and be subscribed by the parties charged thereby; or unless the purchaser shall accept and receive a portion of such goods, or the evidence, or some of them of such things in action; or unless the buyer shall, at the time of the agreement pay a portion of the purchase money. INSURANCE.
By insurance is meant a contract undertaken by the insurer to pay to the person in whose favor the insurance is made a certain sum of money or annuity, on the death of the person insured, in consideration of a certain premium to be paid to the insured either in a gross sum, or by yearly payments.
The party insuring on a life must not only have an interest in the life insured, but that interest must be a pecuniary one. Some difference of opinion exists whether mere relationship constitutes an insurable interest. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation, for a parent has an insurable interest in the life of his child and a child in the life of his parent, a husband in the life of his wife, and a wife in the life of her husband.
The natural affection in cases of this kind is considered as more powerful, as operating more efficaciously to protect the life of the assured then any other consideration. But in all cases there must be a reasonable ground founded on the relations of the parties to each other, either pecuniary, or of blood, or affinity, to expect some benefit or advantage from the continuance of the life of the assured. A direct, definite legal interest is not requisite, but if the claim of interest is only a pretext, or greatly disproportunate to the amount of the insurance, the contract cannot be enforced.
A person may insure his own life and make the policy payable to whom he pleases, or several individuals may insure their joint lives in favor of the survivor. A creditor possesses an insurable interest in the life of his debtor, if the debt be a legal one, and a trustee in regard to the interests he represents. American authorities do not agree as to whether a valid insurance policy may be assigned to a person possessing no interest in the life insured. An insurance becomes void if the person insured can be shown to have made untrue representations or averments in regard to the declaration he is asked to subscribe, touching his age, health and other circumstances. This rule holds good even though the party making the declaration be not apprised of the untruth of his statement. But where for instance a man represented that he was sober, temperate and in good health, if true at the time the declaration was made, his subsequent habits will not prevent a recovery.
There is a conflict of authority as to whether the policy is forfeited by one who committed suicide while insane. But if the condition that suicide felonious or otherwise is expressed, the policy will certainly be invalidated. Accidental death, however, even though the result of negligence will not prevent recovery. The party to be insured need only answer all questions put to him; he need not for instance voluntarly confess that he was addicted to any particular habit, such as intemperance, though such habits were injuring his health. In regard to the insurance of property against damage by fire, the insured. must have an insurable interest in the property protected and he cannot make an assignment of his policy without the consent of the insurer. A purchaser in possession, under contract of purchase has an insurable interest; so have lessor and lessee, and mechanics or material-men who have a lien on the property over which the lien extends. Consignees, bailees, common carriers, warehousemen and so forth have an insurable interest in the goods in their care, as also have sheriffs in the goods or property attached.
As in life insurance, mispresentation or concealment of material facts, invalidates the policy. Accuracy of description of the goods or property insured is very essential, else: the policy may become void.
The sale or gift of the property entails a forfeiture of the policy, but a sale of a part does not void the policy of the balance.
The conditions precedent to the right to recover must be carefully complied with, or the policy will be void; a loss by negligence where no fraud was intended does not affect the policy.