so awarded. The complaint alleges the settlement of this dispute in Campbell's favor before the bringing of the suit, and only claims the balance of the amount awarded after deducting said sum of $110. The appellant demurred to the complaint on the grounds: (1) The facts alleged do not make a case in equity; (2) the award goes beyond the submission in some particulars; (3) some of the matters submitted are not determined by the award. The demurrer was overruled. An answer was then filed by the appellant, and upon the issues made the proofs were taken, and the decree brought here for review rendered in favor of the respondents. But as the allegations in the complaint seem fairly sustained by a preponderance of the evidence, the only questions of law for us to determine arise upon the demurrer thereto.

1. As to whether the case stated in the complaint is properly cognizable in equity, it seems to us there can be no doubt. Assuming that the assignments to the respondents are of portions of the award, and not merely of the proceeds therefrom, as they have been treated in the arguments of counsel, still they would only be partial assignments, and incapable of enforcement by proceedings at law. The authorities to this effect appear to be both numerous and uniform. 2 Story, Eq. Jur. 1044; Bliss, Code Pl. 65; Field v. Mayor, etc., of New York, 6 N. Y. 179; Grain v. Aldrich, 38 Cal. 514.

2. The item of $132.27 for surplus material sold to the appellant, allowed to Buck by the award, is not within the terms of the written submission, as we construe that instrument. But the testimony shows the matter was before the arbitrators, without objection, and was fully considered. Buck testifies that he proposed to the appellant to let him have such material, consisting of cement, sand, paint, etc., at first cost, and freight, which proposition was accepted by the appellant. They both then went with the arbitrators to where the material was, and figured up what the portion appellant got came to, and the remainder was set apart for Buck by the arbitrators. Appellant admits in his testimony that he afterwards used a portion of this material and sold a portion of it on his own account. Buck's statement as to how the matter came before the arbitrators is not disputed. In view of these admitted facts, and the appellant's subsequent express promise to pay the amount awarded to Buck, and including the value of this material, which we find from the testimony to have been made, the appellant is certainly precluded from making the objection now that the subject of the surplus material was not within the terms of the submission. As the submission might have been by parol, the subsequent parol promise to perform the award, including the value of the surplus material, was a valid ratification of the award in that respect. Page v. Pendergast, 2 N. H. 233.

As to the item of $200 damages awarded Buck on account of his having been dispossessed of the premises by appellant before his contract had been completely performed, the preponderance of the evi

dence shows that the matter was considered by the arbitrators, without any objection from the appellant, on the ground that it was not embraced in the submission. If any dispute upon this subject did in fact exist when the submission was entered into, it might clearly be deemed a controversy in relation to the contract for the construction of the store, and therefore covered by the very terms of the submission. And the fact that the matter was brought before the arbitrators, and considered by them without objection by the appellant, on the grounds either of there having been no such dispute or of its not being within the submission, must be held conclusive that such dispute did exist, and was therefore included in the submission. But had the facts been otherwise, the subsequent promise to pay the award would have taken away the objection.

3. Upon the last point it is clear the respondents must have failed, if they had not succeeded in proving appellant's promise to pay the award after it was made known to him. The general rule undoubtedly is that an award which does not determine every matter submitted is not binding. Wats. Arb. 121; Wright v. Wright, 5 Cow. 197; Jackson v. Ambler, 14 Johns. 96; Jones v. Welwood, 71 N. Y. 208; Davis v. Dyer, 54 N. H. 146. But a subsequent ratification takes away all objections on this ground, and a promise to perform the award is sufficient. Cross v. Cross, 17 N. J. Eq. 188; Williams v. Williams, 11 Smedes & M. 393; Culver v. Ashley, 19 Pick. 300.

We find no error in the decree of the lower court, as alleged by the appellant, and it is therefore affirmed.

(18 Nev. 253)

SUPREME COURT OF NEVADA.

GOULD v. WISE.

Filed February 25, 1884.

The employment by a lessee of persons to labor upon or furnish material for a leased building or other improvement, is not such an employment as will, under section 1 of the lien law, authorize liens to be filed for such labor or material, unless the owner or his authorized agent know of the work, in which case the owner will be held to have authorized the same, unless he give notice in writing, posted conspicuously on the land or building, that he will not be responsible for the same. The evidence in this case, and the terms of the lease, show the lessor's knowledge of the intended construction or repair.

The supplemental lien law, as revised in 1875, provides, in section 19, for the liens of foundrymen, boiler-makers, and persons furnishing machinery, etc., "for labor done on such machinery, etc., furnished by each respectively." The word “on ” should read "or," the intention of the statute being to favor equally those laboring upon material, whether furnished by themselves or others. The error is a mere

clerical one.

A teamster carrying quartz to a mill performs labor, for "carrying on " the mill, and is entitled to a lien for it.

A re-enactment of a statute without substantial alteration, after an authoritative construction has been placed upon it, and officially published, whether by this state or the United States, is a legislative adoption of the construction.

LEONARD, J., dissents.

Appeal from the Fourth judicial district court, Humboldt county.

Dickson & Varian, for appellant.

A. C. Ellis, for respondent.

BELKNAP, J. Foreclosure of mechanics' liens. The Boca Mill Company, a corporation, was the owner of reduction works, and the land upon which they are situated. One Torrey entered into the possession of the premises under a written lease, duly recorded, for the term of two years. During Torrey's term the plaintiff and intervenors. furnished materials and labor which were used in repairing and "carrying on" the mill. This suit in brought against defendant, as the successor in interest of the Boca Mill Company to the property, to enforce lien claims for the materials and labor so furnished.

The first question presented is whether Torrey, the lessee, could create a lien upon the premises that would affect the estate of the lessor. Section 1 of the lien law provides that "every person performing labor upon or furnishing materials. to be used in

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has

the construction, alteration, or repair of any building, a lien upon the same for the work or labor done, or materials furnished, by each respectively, whether done or furnished at the instance

of the owner of the building or his agent; and every contractor, subcontractor, architect, builder, or other persons having charge of the construction, alteration, or repairs, either in whole or in part, of any building, or other improvement as aforesaid, shall be held to be the agent of the owner for the purposes of this chapter. St. 1875, p. 122. It may be conceded for the purposes of this case that to authorize a lien there must be an employment by the owner of the building, or his authorized agent, and that an employment by a lessee does not constitute the employment contemplated by the statute; and, further, that to constitute the contractor, sub-contractor, architect, builder, or other person the statutory agent of the owner, such person must have been employed, directly or indirectly, at the instance of the owner, or his conventional agent. But the interest of the owner may be subjected to lien claims, notwithstanding the labor and materials have not been furnished at his instance, if, knowing that alterations or repairs are being made or are contemplated, he fail to give notice that he will not be responsible therefor, as provided in section nine of the act. The provision is as follows:

"Sec. 9. Every building or other improvement mentioned in section one of this act, constructed upon any lands, with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, or the intended construction, alteration, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situate thereon."

The evidence showed that the corporation had an agent residing in the vicinity of the premises, who personally visited the reduction works and knew that the work was being done and the improvements made. This evidence was prima facie sufficient to charge the corporation with knowledge of the fact. No notice having been given by it that it would not be responsible for the materials and work, it results from the provisions of this section that its estate is chargeable with the liens.

Again, a consideration for the lease was that the lessee, "at his own cost and expense, make all necessary repairs and improvements in and about said mill and reduction works, and furnish all necessary materials to place the same in good condition for crushing," etc. The money so used, together with that expended in paying taxes and insurance, the lease provides, "shall be in full payment and satisfaction for the rent of said premises for the first year." This of itself shows knowledge on the part of the corporation of the "intended construction, alteration, or repair," within the meaning of section 9.

A question growing out of the provisions of this section is whether persons performing labor in operating the mill can acquire a lien against the estate of the lessor. Section 19, as will be hereafter shown, provides liens for labor performed in "carrying on" mills, manufactories, and hoisting works, and declares that all the provisions of the lien law respecting the mode of filing, recording, securing, and enforcing liens shall be applicable to the provisions of this section. The provisions of the lien law preceding section 19 were, with two exceptions, immaterial to this case, enacted with reference to liens for work done or materials furnished in the construction, alteration, or repair of buildings. In extending the right of lien to a new class, it was natural for the legislature to ordain that the general rules governing liens should also be extended. And in section 19 these general provisions were made applicable to the new subject of lien. This conclusion is warranted by the phraseology of the statute, and by the presumed intention of the legislature, to create a harmonious and not an incongruous law.

The question also arises whether the law, as it now stands, contemplates lien-claims for work performed in "carrying on" reduction. works. At the session of the legislature of 1869 the following supplement was made to the mechanic's lien law:

"All foundrymen and boiler-makers, and all other persons performing labor, or furnishing machinery or boilers, or castings, or other material, for the construction, or repairing, or carrying on of any mill, manufactory, or toisting works, shall have a lien on such mill, manufactory, or hoisting works for such work or labor done, or for such machinery, or boilers, or castings, or other material furnished by each respectively." St. 1869, p. 61.

At the next session the lien law underwent some alterations, but this section was re-enacted without change, save that the italicised. word "for" was omitted. The employment of this word in the original enactment was unnecessary, and its omission worked no other alteration in the law.

The supplemental law provides for two classes of lien claimants. One class consists of foundrymen, boiler-makers, and persons furnishing machinery, boilers, castings, or other material. The other class consists of persons performing labor. Down to the time of its enactment persons performing labor or furnishing materials for the purpose of operating mills, mauufactories, or hoisting works were not entitled to liens under the lien law. The only object of the provision was to extend the right of lien to this class of claimants. Foundrymen, boiler-makers, and others furnishing labor or materials in constructing or repairing were already secured in their right of lien by the provisions of section 1 of the lien law, and the provisions of the supplemental law did not confer upon them additional rights.

In the year 1875 the law was again revised, and the revision constitutes our present law. The section under consideration was then re-enacted without change other than this: the italicized word "on"