contract, or of destruction of the building before comple tion, the subcontractors under him, and their materialmen and laborers, would not seem to be entitled to any lien. The law was so held in Malbon v. Birney, 11 Wis. 107, 110, where it was held that one who had furnished lumber to a principal contractor, which he had used in the construction of the building, and had voluntarily abandoned his work, could not recover against the owner as a subcontractor under such principal contractor by virtue of the lien law, and it was said that "if Kennedy [the contractor] could not have recovered on a quantum meruit for his labor and on a quantum valebant for the materials, the respondents [the materialmen] ought not to sustain this action." And it seems clear that the rule must be the same where the building has been wholly destroyed before completion. That the rule in Malbon v. Birney, 11 Wis. 107, has not been affected by the amendment by chapter 333 of the Laws of 1889, of section 3315 of the Revised Statutes, seems obvious from an inspection of its language, making it the duty of the principal contractor to defend any action brought to enforce a lien by any subcontractor or materialman or laborer under him at his own expense, and that, "during the pendency of such action, the owner may withhold from the contractor the amount of money for which such lien shall be filed, and, in case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any 297 amount due from him to the contractor the amount of such judgment and costs, and, if he shall have settled with the contractor in full, shall be entitled to recover back from the principal contractor any amount so paid by the owner, for which the principal contractor was originally liable." The provision in question is plainly restricted to a case such as was before the court in Mallory v. La Crosse Abattoir Co., 80 Wis. 170, where the building had been completed, and where the controversy was as to the liability of the owner to pay, through his property, the sums due from the principal contractor to his subcontractors, materialmen, or laborers, although in excess of the contract price for erecting the building. Its entire scope is restricted to allowing the owner to deduct from the contract price due and unpaid by him to his contractor the amount of the judgment and costs recovered against the latter, and, if he shall have settled with the contractor in full, he is allowed to recover back from the principal contractor any amount so paid by him, for

which such principal contractor was originally liable. We hold, therefore, that, by reason of the destruction of the first building before completion, the several claimants plaintiffs, who are materialmen and laborers, are not entitled to liens on the lots for materials or for work and labor used and expended on such building; that those who furnished materials and performed work and labor on the second building are entitled to liens therefor on that building, and upon the right, title, and interest of the owner, Baerlocher, therein.

2. There is no preponderance of evidence against the finding of the court adverse to the deferse set up by the appellant to the claim of Noyes & Co., and hence there is no ground for disturbing the finding on that subject.

3. The objection that the claim of Noyes & Co. for a lien was not seasonably filed is, we think, untenable. It was delivered in due form to the proper officer to be filed. His 998 failure to put his file mark on it, and to make the docket entries on the docket of mechanics' liens within the prescribed six months for filing liens, will not defeat the claim.. The statute provides for both filing and docketing the claim, and these are entirely different things. The law requires the party to file his claim for a lien, and the clerk is to docket it: Rev. Stat. secs. 3318, 3319. And section 3321 is that "any person having so filed such claim," etc. The rights of the claimant to a lien are secured when his claim therefore is delivered to and left with the clerk to be filed. The statute requires him to file it and to docket it. The first part of the section provides that within six months, etc., it "shall be filed as hereinafter provided," and in the latter part that "such claim for lien may be filed and docketed within such six months, notwithstanding the death of the owner of the property affected by it," etc.; and this is the "hereinafter provided," and satisfies the previous require ment of the section, for there is no other provision in the statute to which it can possibly apply. It certainly does not refer to docketing the claim. When the claimant has delivered his claim for a lien to the clerk, and left it with him to be filed, he has done all he is required to do-all he possibly can do to secure his rights, and he will not be prejudiced by the neglect of the clerk to perform, in respect to it, his duty as directed by the statute. Docketing the claim is not a prerequisite to securing the lien: Smith v. Waggoner, 50 Wis. 155; Gorham v. Summers, 25 Minn. 81;

People v. Bristol, 35 Mich. 28; Bishop v. Cook, 13 Barb. 329; Dodge v. Potter, 18 Barb. 193.

By the COURT. The judgment of the circuit court is reversed, and the cause remanded, with directions to enter judgment according to this opinion.

A PAPER IS FILED when it is delivered to the proper officer and by him received to be kept on file. The file marks are but evidence of its having been filed. The duty of filing usually includes that of putting on such marks: County Commrs. v. State, 24 Fla. 55; 12 Am. St. Rep. 183. The failure of the officer to do his duty does not affect the validity of the filing: Beebe v. Morrell, 76 Mich. 114; 15 Am. St. Rep. 288, and monographic note thereto showing what constitutes a filing of papers and evidence thereof.

RIGHT TO MECHANIC'S LIEN WHEN, WITHOUT FAULT OF THE OWNER, THE BUILDING IS NOT COMPLETED.-The decisions of the courts are not entirely harmonious upon the question as to what will, or will not, defeat a claim of lien by a subcontractor, materialman, or laborer, where there is ■ failure to complete the building according to the terms of the contract. A mechanic's lien, however, is a creature of the statute, and upon principle, as well as authority, the lien or right of the subcontractor and others is always in strict subordination to the terms of the original contract between the owner and his immediate contractor: Dingley v. Greene, 54 Cal. 333; Roylance v. San Luis Hotel Co., 74 Cal. 273. It is evident, too, that the right to a lien, in any particular case, depends upon the wording of the statute. There may be a failure to complete the building because it was not built according to the terms of the contract, or within the time therein specified; or because of its severance from the freehold, or removal, or destruction by fire, wind, or water before completion; or because it was abandoned by the contractor before completion. It is clear, however, with respect to abandonment, that the right of a materialman to a mechanic's lien depends on whether he furnished material on the credit of the structure of which it was to form a part, and whether it was of the kind and quality specified in the contract of the owner with the builder; and does not depend on the conduct of the builder after the materials have been furnished. The abandonment of the contract by the builder will not, in such a case, deprive the materialman of his lien: Linden Steel Co. v. Rough Run Mfg. Co., 158 Pa. St. 238.

PRESERVATION OF LIEN UPON ABANDONMENT OF WORK-WORK IS COM. PLETED, WHEN.-Parties intending to assert liens rather than rely upon the personal credit of the debtor must be vigilant to ascertain when the work is completed or abandoned, and not be too early or too late in filing their statements, because the premature filing of a statement for a lien on building is as ineffective as one filed after the statutory limitation has expired. In determining the perplexing questions which often arise as to when a work is completed or abandoned, "the court should not take ■ technical and narrow view, but should save to parties entitled to liens any rights they may justly have, under a fair and equitable construction of the facts and the law applicable thereto." And it would seem to be inequitable and unreasonable, and contrary to the spirit of the law, to hold that parties are absolutely barred of all rights to the lien law where the work is permanently stopped or abandoned without fault of such parties, as such a con

struction would place material men and laborers "at the mercy of the dishonesty, fickleness, or misfortunes" of the owner or contractor. It has, therefore, been held that, in case of abandonment of the enterprise, the building is to be deemed completed, so far as concerns the rights of the parties not in fault, to file and assert their liens: Catlin v. Douglass, 33 Fed. Rep. 569; Shaw v. Stewart, 43 Kan. 572; Reed v. Norton, 90 Cal. 590. And there is no question as to the justness of such a rule if the abandonment was caused either by the consent or fault of the owner: Shaw v. Stewart, 43 Kan. 572. The time of presentation of the claim is material under à statute prescribing when it must be presented. If such time is fixed at ten days after the "job or contract" let by the owner "shall have been fully completed" the time allowed for presenting the claim must be computed from the completion of the work under such contract, as its completion need not be the completion of the contemplated improvement. It may be that only a part of the whole work has been let, or that the completion of the struc ture is not in present contemplation. If the principal contractor abandons his contract the work under it must be regarded as completed within the meaning of the statute, else the subcontractor could not enforce his lien at all when the owner has seen fit to pay off the contractor. But in such a case the subcontractor must present his claim within ten days after such abandonment, and cannot postpone the presentation until the work is completed under a new contract with a stranger to the first one, or is completed by the owner himself: Basham v. Toors, 51 Ark. 309.

With reference to the completion of the building, the contractor and subcontractor should be considered as substantially one and the same person, as between them and the owner of the property. The building, therefore, should be considered as completed when, and only when, the contractor has completed his part thereof. "No privity of contract," says Valentine, J., in Davis v. Bullard, 32 Kan. 234, 237, a case involving the premature filing of a statement for a mechanic's lien, "exists between the owner of the building and the subcontractor; but the subcontractor's rights are based simply and solely upon his contract made with the contractor. The contractor, and not the owner of the building, is the subcontractor's debtor, and the subcontractor has no right to claim that the building has been completed, until the contractor under whom he claims has such right. Under the contract between the owner and the contractor the owner agrees to pay the contractor a certain sum for constructing the building, and this sum is a fund which may be held under the statutes for the payment, so far as it will go, of all the claims of all the various subcontractors, for work and materials furnished by them to the contractor, who is the principal and head of all; and all the parties entitled to payment or contribution out of this fund should be able to reach the fund and get their proportionate shares thereof, at the same time, or within the same period of time. Besides, one subcontractor ought not to be able to reach this fund and appropriate it to the extent of his claim before another subcontractor can reach it; for, if the fund should not be sufficient to pay the claims of all the subcontractors, then each subcontractor should be paid only a proportionate share thereof. Now, the amount of all the claims of all subcontractors can be ascertained only after all the work and materials have been furnished, and after the building has been completed so far as the contractor is required to complete the same; for the whole of the work may in fact be done by subcontractors only, or the last item of work performed or materials furnished may be performed or furnished by a subcontractor. The building, in such a case, would be com

pleted by a subcontractor; and the subcontractor completing the building or furnishing the last item of work or material therefor is entitled to his proportionate share of the general fund equally with the subcontractor who furnished the first item of work or material, or any intermediate portion thereof. Of course, when the contractor has furnished, through himself or his subcontractors, all the work and material which he had agreed to furBish, then the building is completed, so far as he is concerned, and is also completed so far as all the subcontractors under him are concerned; and the contractor and each of the subcontractors may then file their respective statements for liens, and each will then become entitled to his proportionate share of the fund. If, however, the contractor should abandon the work for any cause before completing the building under his contract, it is possible, and even probable, that the subcontractor may then, if not inequi table, consider the building as completed, and obtain liens thereon within four months thereafter by complying with the provisions of sections 631 and 632 of the Civil Code. But so long as the contractor has not completed the work under his contract, but is still at work on the building under his con. tract, the building cannot be considered as having been completed, either as to the contractor or any subcontractor."

COMPLETION OF BUILDING BY OWNER AFTER CESSATION OR ABANDON. MENT OF WORK.-The California statute makes the cessation from labor for thirty days upon any “unfinished contract" equivalent to a “completion” thereof, for all who claim a lien by virtue of that contract, as fully as though the building was actually completed: Kerckhoff-Cuzner Mill etc. Co. v. Olmstead, 85 Cal. 80; Willamette Steam etc. Mfg. Co. v. Los Angeles College Co., 94 Cal. 229. It is immaterial whether the building is subsequently completed by the owner or not, or, if completed, whether such completion is effected by the owner directly, or through a contract with another. For the purposes of creating a lien thereon through the terms of the unfinished contract, the cessation from labor under that contract for thirty days is a statutory completion of the building which sets the time running within which the claim of lien must be filed. The claim, under such circumstances, must be filed within thirty days after such time commences to run, although it be filed within thirty days from the actual completion of the building: Kerckhoff-Cuzner Mill etc. Co. v. Olmstead, 85 Cal. 80; Johnson v. La Grave, 102 Cal. 324, modifying Marble Lime Co. v. Lordsburg Hotel Co., 96 Cal. 332, holding that the abandonment of work upon a building, by a contractor, before its completion does not necessitate the filing of a lien within thirty days thereafter if the owner goes on with the work, and does not occupy or accept the building. A subsequent contract by the owner, after an abandonment of the original contract, for the completion of the work is as disconnected from the original contract as if it were for the construction of a different building. Hence, if the original contractor under a building contract gives to the owner of the building written notice that he abandons the contract, and that he declines to proceed further in its execution, and thereafter does no work upon the building, whereupon the owner contracts with another builder to complete the building, it is necessary for those claiming mechanics' liens by virtue of the original contract to file them within thirty days after there has been a cessation from labor for thirty days upon the finished contract. If the rights of materialmen to enforce a lien upon a building have been lost by a failure to file their claims of lien in time it is immaterial to them or to their assignee whether any portion of the moneys due to the contractor was unpaid at the time he had entered