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direct benefit, there must be some- lessee were to belong to and be rething in the nature of a direct dealing movable by it. Rice v. Culver (1902) between the contractor and the person 172 N. Y. 60, 64 N. E. 761, reversing in whose interest is sought to be charged. part (1901) 57 App. Div. 552, 68 N. Y. Graham v. Williams (1884) 8 Ont. Supp. 24, 9 N. Y. Anno. Cas. 286. Rep. 478, affirmed in (1885) 9 Ont. And a lessor's knowledge that imRep. 458; Gearing v. Robinson (1900) provements were being made by the 27 Ont. App. Rep. 364; Eddy Co. v. lessee, and his acquiescence therein, Chamberlain (1917) N. B. 37 does not constitute the required conD. L. R. 711. It is, however, doubtful sent, where the lease contains no covewhether these cases mean that direct nant by the lessor to repair, and the dealing is essential to consent. They tenant has an absolute right to make seem rather to lean to the view that the repairs without the consent of the consent in itself is not sufficient to lessor. McCauley v. Hatfield (1894) give the lien.

59 N. Y. S. R. 552, 28 N. Y. Supp. 648.

And where the tenant was not reb. Illustrative cases.

quired by the lessors to make any im1. Improvements or repairs by lessee.

provements, and no permission to Where lessees put in certain parti

make them was especially given, and

it did not appear that the lessors tions which were so put in that they

wanted them made, they did not concould be and were removed by the

sent within the meaning of the statute, lessees and were not useful or neces

though, at the time the lease was exesary to the leased store as a store,

cuted, they probably knew that the since the lessor had no right to object

lessee intended to make improvements thereto consistently with the right of

consisting mainly of the removal of the lessees, the mere fact that the lessor's treasurer and general manager

certain partitions, for the purpose of

making the rooms larger, and painting was about the premises and saw the partitions being put in, and made no

and plastering such rooms, and though

they or their agent watched the imobjection, did not show consent. Hanson v. News Pub. Co. (1902) 97 Me. 99,

provements and even passed upon

them, and at the expiration of the 53 Ala. 990.

lease the improvements became their So, the mere fact that the owner

property. Garber v. Spivak (1909) knows that one holding a lease for å

65 Misc. 37, 119 N. Y. Supp. 269. long term of years contemplates making certain improvements for pur

And even though the lease required poses of trade, which he has no power

the lessee to make all repairs, and the

plans for certain contemplated repairs to prevent, and from which he can

were submitted to the lessor before derive no ultimate benefit, will not

the lease was signed and approved, subject his interest to a lien. It never could have been the intention of

consent to the performance of the lathe legislature to make such owner

bor or furnishing of the material liable, and it is doubtful, if they had

could not be inferred where none of attempted to do so, whether it lies the lienors had any transaction with within their power." Havens v. West

the lessor, or saw or had any commuSide Electric Light & P. Co. (1892) nication with him, except that one of 49 N. Y. S. R. 771, 20 N. Y. Supp. 764, them saw him on one occasion while affirmed in (1894) 143 N. Y. 632, 37 he was working on the building, and N. E. 827.

was asked by him about a detail of the And though a lessor must have work. Sunshine v. Morgan (1902) 39 known at the time he leased premises Misc. 778, 81 N. Y. Supp. 278. for use as an athletic field, that the One leasing premises by a lease lessee intended to erect buildings which requires the lessee to build an thereon in order to use the premises addition to the building and put the for such purpose, this would not sup- old building in repair at his own export a finding of consent, where all pense, and who lives near the premstructures or buildings erected by the ises during the time an underlessee is

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making repairs on the main building cost of the alterations specified in the which are apparent to anyone passing, lease, and no objection to the manner does not consent to the contract of the in which the requirements of the lease underlessee for such repairs, so as to were fulfilled, did not show consent subject the fee to a mechanics' lien within the meaning of the statute. therefor. Francis v. Sayles (1869) De Klyn v. Gould (1901) 165 N. Y. 101 Mass. 435. The court said: “It 282, 80 Am. St. Rep. 719, 59 N. E. 95. would be a great stretch of construc- The court said: “Here the owner tion to say that the lessor whose de- carefully stated in the lease her posimise really has the effect of an alien- tion with respect to alterations and ation so long as the term lasts, and improvements, and it may be assumed who has parted with the control of the that both the amount of the rent and property during that time, agrees or the length of the term were influenced consents or authorizes anyone to con- by the tenant's agreement to make the sent for her to the contract under specified repairs. She never was which the petitioners claim.

asked to declare her position with reThe most that can be said would be spect to the important and expensive that she did not object to proceedings departure by the tenant from the by her lessees which she may have had specifications, and she misled neither no power to prevent if she had the the tenant nor the contractor. Unwish to do so.”.

doubtedly she consented to such alWhere there were findings that the terations and additions as the lease respondent executed a lease contain- called for, but as the terms of the ing a covenant on the part of the lease accompany that consent, we canlessee to make all necessary repairs not separate it from them. She could and alterations at his own expense; accept the larger performance by the that labor was performed and mate- tenant as satisfactory performance rials furnished by the petitioner in

under the lease, and in the absence of making repairs and alterations under

evidence that she did more, we cannot an agreement with the lessee; that

enlarge the scope of her acceptance in the respondent had consented prior

order to make her bear a greater liato the lease as well as in the lease to

bility than she ever consented to inthe making of repairs and alterations

cur." of a character like those which were

It will be noted that some of the made; and that the labor was performed with his consent, but that he

cases just referred to apparently ashad no knowledge of any particular

sume that a stipulation in the lease contract with the petitioner until a

requiring the lessee to make repairs, .certain date, after which time he occa

or even improvements, is not in itself

a sufficient consent to satisfy the state sionally saw him at work,—the court

ute; and while there may be cases said that there was no agreement with

holding that such a stipulation is a or consent of the owner of the build

sufficient consent, no attempt has ing or any person having authority

been made to collect such cases or to from or acting for him, and that the petitioner had no lien. Conant v.

compare them with those herein cited, Brackett (1873) 112 Mass. 18.

as that question is believed to be outWhere the lease required the lessee

side the scope of this note.

Under the statutes of Ontario and to make certain changes and improve

New Brunswick, which subject the ments at his own expense, but he made

owner's interest to a lien for work far extensive improvements,

done or materials furnished with his costing an amount largely in excess

"privity or consent," it is held that of the cost of the required improve

a lessor's knowledge that materials ment, the mere fact that the lessor

are being furnished to a lessee having and her husband, while the work was an option to purchase, and a right to in progress, were frequently in the build and improve the land, or a vicinity and saw the work going on, lessee's knowledge that work is being but made no inquiry as to the probable done under a contract with a sub


lessee is insufficient to create a lien. deeds as security for the purchase Graham v. Williams (1884) 8 Ont. price, and they had nothing to Rep. 478, affirmed in (1885) 9 Ont. do with the contract for the Rep. 458; Gearing v. Robinson (1900) erection of a building thereon for 27 Ont. App. Rep. 364; Eddy Co. v. the purchaser, and


not in Chamberlain (1917) - N. B. 37 any way authorize any work to be D. L. R. 711.

done on the land in such a way as to The question as to the effect of the create a charge upon their interest in owner's knowledge of a contract made it, or consent to the erection of the by his tenant for labor and materials building otherwise than upon the sole is also referred to in Reppard v. Mor- credit of the purchaser or its conrison (1904) 120 Ga. 28, 47 S. E. 554, tractor, no lien was acquired until the .but was not decided, as the jury had delivery of the deeds, though they found that there was no assent, ex- knew of the purpose to erect the buildpress or implied.

ing, and knew of its erection as the

work went on. This did not show 2. Improvements or repairs by vendee.

their consent within the meaning of A contract by the owners for a sale

the statute as matter of law. As the of land, notice to them that the vendee

case was submitted on an agreed stateintends to build upon it, and knowl

ment of facts, from which the court edge of the progress of the work

was not authorized to draw infercharges them with no responsibility

ences, the court refrained from defor it to anyone, and gives a person

ciding whether such consent could be employed by the contractor erecting

inferred from the facts stated, as a the building no right to a lien against

matter of fact. Courtemanche v. them under a statute requiring an Blackstone Valley Street R. Co. (1898) agreement or consent, express or im

170 Mass. 50, 64 Am. St. Rep. 275, plied, on the part of the owner whose

48 N. E. 937. It was, however, held, interest in the land is sought to be

that the purchaser's consent to the charged with the lien. Hayes v. Fes

continuance of work after delivery senden (1870) 106 Mass. 229.

of the deeds was a consent to the That a vendor knew that labor was

whole work, and entitled the petibeing furnished for a house being

tioner to a lien therefor; pointing out, built by an executory purchaser, and

however, that there were no intervenspoke with the purchaser about fur

ing rights of third persons. nishing a frame for the house, did not

Where a contract of sale authorized import consent on his part in such

the vendee to remove a cottage to ansense as to satisfy the Massachusetts

other part of the lot, but did not bind statute. Consent means conduct ex

him to remove it, or to alter or repair, pressive of consent, and silence may

the vendor's interest could not be be such conduct under some circum

charged with a mechanics' lien for stances; but as the party furnishing repairs and improvements thereon the labor did not know that the owner

simply because, knowing that the work was the owner, and the owner did not

was to be done, and was being done, know who was doing the work or un

she did not try to stop it. Vosseller v. der what contract he was doing it, or

Slater (1898) 25 App. Div. 368, 49 that a lien was or might be claimed

N. Y. Supp. 478, affirmed in (1900) by anyone, his silence ought not to

163 N. Y. 564, 57 N. E. 1128. The have such a meaning attributed to it. Saunders v. Bennett (1893) 160 Mass.

court said: “The vendor, Mrs. Slater, 48, 39 Am. St. Rep. 456, 35 N. E. 111.

had no power to compel the vendee to The case, said Justice Holmes, was not remove the cottage, or to control the like that where the contract between vendee as to what repairs should be the owner and purchaser required the made upon it, at what expense, or by latter to build, and thus by implica- whom. The alterations were not made tion authorized him to employ the for her benefit, and, as it turned out, necessary workmen.

they were made to her great injury, as And where vendors retained the the undisputed evidence is that the

4 A.L.R.-44.


premises as altered were not worth as (1893) 137 N. Y. 188, 33 N E. 154, much as they were before the change, affirming (1891) 62 Hun, 622, 43 N. Y. and could not be rented for as much S. R. 342, 17 N. Y. Supp. 387. as formerly.

It would be a In Jodd v. Duncan (1880) 9 Mo. most unusual statute and of doubtful App. 417, it was held that one who validity which should provide that in entered into possession under a concase a vendor sells real estate by an tract of purchase and erected buildordinary, executory contract of sale, ings might be regarded as an owner knowing that the vendee intended to within the meaning of the Mechanics' erect a building thereon, the vendor's Lien Statute, and, as such, might bind interest should be charged with a lien his equitable interest in the land; and for the expense of erecting a building, that if the contract to purchase the and so improve the vendor out of his land was not carried out, the expecta. estate."

tion of title would fail, and the fact And though an owner of land had that the owner knew that the building knowledge that a well was being was being erected and did not dissent, drilled thereon by plaintiff under a ought not to be construed into an ascontract with a third person, he did sent that the land should be chargenot consent to the doing of the work able with the lien. The statute, how. so as to subject the property to a lien ever, does not seem to have contained where the third person had agreed any provision for a lien for improveto drill the well at his own expense,

ments made with the owner's conscnt, and the owner so informed plaintiff. but required the improvements to be Clark v. North (1907) 131 Wis. 599, 11 made under a contract with the owner L.R.A.(N.S.) 764, 111 N. W. 61, 11 or his agent. Ann. Cas. 1080. The relation of the In Boyers v. Hendricks (1883) 4 Ky. third person to the owner does not L. Rep. 735, involving improvements appear, except in the complaint ag set by a vendee under a parol contract out in the opinion it is alleged that the which had been rescinded, it was said owner "optioned" the land to the third that where the vendor had stood by person.

and remained silent while the imWhere a contract of sale provided provements were being made, he could that the vendee should have the right not resist the lien, independent of any

, of immediate possession for the pur

statutory provision on the subject. pose of erecting buildings on the

The statute then in force, however, land, the vendor's knowledge that the

expressly provided for a lien on the vendee intended to improve the prop

rescission of such a contract to the

extent of the enhancement in value. erty by the erection of a building was insufficient to establish its consent to

o. Contrary decisions. the erection of any building which the While no case involving improvevendee erected, in the absence of proof ments by a lessee or vendee has been of its knowledge as to the character of found in which the court based a findthe building being erected, of the ing of consent solely on the owner's erection of the building actually con- knowledge and failure to object, some structed, or of its acquiescence there- of the New York cases decided prior in.

Beck Catholic University to De Klyn v. Gould (1901) 165 N. Y. (1902) 172 N. Y. 387, 60 L.R.A. 317, 282, 80 Am. St. Rep. 719, 59 N. E. 95, 65 N. E. 204.

showed a tendency to treat knowledge There is no consent by a vendor to and failure to object as strong eviimprovements by a vendee where, dence of consent. Cowen v. Paddock upon discovering that he is making (1891) 62 Hun, 622, 43 N. Y. S. R. 342, such improvements, the vendor ob- 17 N. Y. Supp. 387, affirmed in (1893) jects and insists that the work must 137 N. Y. 188, 33 N. E. 154; National stop until the vendee has performed Wall Paper Co. v. Sire (1900) 163 the contract of purchase and become N. Y. 122, 57 N. E. 293, 7 N. Y. Anno. entitled to a deed to the property and Cas. 406; Kealey v. Murray (1891) 40 to the possession. Cowen v. Paddock N. Y. S. R. 23, 15 N. Y. Supp. 403;


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Mason Ice Mach, Co. v. Upham (1898) seems to be assumed by the legisla26 App. Div. 420, 50 N. Y. Supp. 197 ture that the owner of real estate will (especially the concurring opinion); be vigilant in caring for it either in Rice v. Culver (1901) 57 App. Div. person or by agents; that if he leaves 552, 68 N. Y. Supp. 24, 9 N. Y. Anno. it in the possession of agents or tenCas. 286, rehearing denied in (1901) ants, knowing that repairs are neces57 App. Div. 637, 68 N. Y. Supp. 1147, sary to be made from time to time, reversed in part in (1902) 172 N. Y. and makes no provision for them, but 60, 64 N. E. 761. And see also the leaves them to be made by agents or following cases, in which, however, the tenants, and gives no notice of dissent, relation was not that of lessor and his consent may be inferred so far lessee, or vendor and vendee: Husted as the lien claimants are concerned.” v. Mathes (1879) 77 N. Y. 388; Nellis The court, however, limited the holdv. Bellinger (1876) 6 Hun (N. Y.) ing to ordinary, preservative repairs, 560; Hellwig v. Blumenberg (1889) 5 and it appeared that the lease originSilv. Sup. Ct. 290, 28 N. Y. S. R. 75, 7 ally provided that the lessee would N. Y. Supp. 746; Dennis V. Walsh make inside repairs and the les(1891) 41 N. Y. S. R. 103, 16 N. Y. sor outside repairs, but that at the Supp. 257.

time of a transfer of the lease, when Thus, in National Wall Paper Co. v. repairs were needed for the preservaSire (1900) 163 N. Y. 122, 57 N. E. tion of the building and to keep up its 293, 7 N. Y. Anno. Cas. 406, supra, earning powers as a hotel, the matter O'Brien, J., said: “We may, therefore, of repairs was talked over between the fairly deduce from the decisions of assignee and the managing owner, and this court upon the question now un- they had an understanding that the der consideration the following propo- assignee would make repairs both insitions: (1) That no express consent side and outside, and he and another is necessary on the part of the owner of the owners saw the repairs being in order to bring the case within the made, and made inquiry and advised statute providing for mechanics' liens. to some extent with the workmen (2) That a consent may be implied about the work. In addition the statfrom the conduct and attitude of the ute was somewhat peculiar in that it owner with respect to the improve- formerly provided for a written notice ments which are in process of con- to the owner and written notice of struction upon his premises. (3) The

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dissent by him, and while the provifacts from which the inference of sion for notice to the owner had been consent is to be drawn must be such eliminated, the provision for written as to indicate at least a willingness on notice of dissent by him had been rethe part of the owner to have the tained. improvements made, or an acquiescence in the means adopted for that

III. Consent shown by knowledge in con

nection with other facts, purpose, with knowledge of the object for which they are employed.

Where a lease provided that the ten(4) The cinission of the owner to ob

ants should put in a steam heating and ject to improvements made upon his elevator plant and make other repairs, premises by a tenant when he has at their own cost and expense, such knowledge of the circumstances under improvements to belong to the lessors which they are being made is always upon the expiration of the lease, and, an important fact bearing upon this in addition, the lessors' agent had noquestion." The finding of consent in tice of the contract which had been that case, however, rested upon facts made with plaintiffs for the elevator, far more persuasive than mere failure the facts warranted an inference of to object, and in De Klyn v. Gould consent. New York Elevator Supply & (N. Y.) supra, the court practically Repair Co. v. Bremer (1902) 74 App. limited its application to those facts. Div. 400, 77 N. Y. Supp. 509, affirmed

In Shaw v. Young (1895) 87 Me. in (1903) 175 N. Y. 520, 67 N. E. 1086. 271, 32 Atl. 897, the court said: “It A lien was, however, denied in this

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