S. Morgan Smith Co. v. Sissiboo Pulp and Paper Co.

J.-The facts are very fully stated in the judgment of Mr. Justice Graham in the court below. The case may be disposed of upon one short ground, namely, that section of the Mechanics' Lien Act is not applicable to such a transaction.

Assuming, but without deciding, that, in a case of this kind, a lien could be acquired as against the defendant company for materials, etc., supplied to Burrill, yet, by section 6 of the Act, R. N. 1900, S. ch. 171,

.V. The. plaintiffs acquired no lien by their contract with Burrill. No lien could attach until the machinery was actually furnished or the work done. Long before that the full consideration had been paid. The only ground upon which the plaintiffs can hope to maintain a lien as against the defendant company would be that section of the Act applies, and we think that that section does not by its terms apply to a case where there was no price specified or capable being aecertained for the erection of the building, but the contract price of the building was blended with considerations for other matters from which it could not be separated.

And we adopt the reasoning of the cases in Massachusetts referred to in the judgment below, to which may be added Ellenwood v. Burgess (1); Angier v. Bay State Distilling Company (2).

We think the appeal should be dismissed with costs. Appeal dismissed with costs.