which the lien is given. P. & L. Dig. Laws Pa. 1897, vol. 4, col. 1269, § 55. Whoever shall do work or furnish materials by contract, express or implied, with the owner as provided in the mechanic's lien law, shall be deemed an original contractor, and all other persons doing work or furnishing materials shall be deemed subcontractRev. St. Utah, 1898, § 1383. ors. As agent, laborer, mechanic, etc. As a business, see "Business." Subcontractors. A "contractor," within the meaning of the Kentucky lien act, is one who does work or furnishes material for the owner, and upon a contract with the owner for the payment of the contract price. Thus, where a railroad let the contract for building its road to a contracting company, which let out a portion of said contract to a construction company, resolutions of the railroad company which did not obligate the railroad company to pay the construction company for the work and materials which it was to do and furnish, and for the lien claims which it was to purchase and hold, did not constitute the construction company a contractor in relaRichmond & As an occupation, see "Occupation (Voca- tion to the railroad company. tion)." Materialman as. The term "contractor," as used in a mechanic's lien statute authorizing liens in favor of contractors performing labor, etc., in building a house, and in favor. of materialmen, but distinguishing between the two as to the matter of remedy, only includes persons who work on the house, and does not include those furnishing materials without performing labor thereon, though the latter may be "contractors" in the general sense of the term. Mulrine v. Washington Lodge, No. 5, I. O. O. F. (Del.) 6 Houst. 350, 353. I. Const. Co. v. Richmond, N. I. & B. R. Co. (U. S.) 68 Fed. 105, 109, 15 C. C. A. 289, 34 L. R. A. 625. The term "contractor," in the mechanic's lien law, which provides that a person who contracts with the owner of lands to furnish material, machinery, etc., to be used in erecting buildings on the land or improving the same, shall be known as a "contractor," includes one who contracts to furnish an engine to be placed in a lighting plant constructed by a private individual on his own land, to be conveyed to the city when the plant is completed. City of Salem v. Lane & Bodley Co., 60 N. E. 37, 39, 189 Ill. 593, 82 Am. St. Rep. 481. A "contractor" is one who agrees to do has been held to include either those who anything for another; and this general term The term "contractor," in the mechanic's lien law authorizing liens for services or materials performed or furnished under a contract with the owner or with a contractor, does not include one who merely furnishes lumber or other materials toward the erec- have made contracts directly with the owntion of a building. There is no privity beer of the premises or those who have contween him and the owner through which those tracted with the contractor. Lester v. Housfrom whom he may purchase the materials ton, 8 S. E. 366, 369, 101 N. C. 605. may subject the building to a lien. Brown v. Cowan, 1 Atl. 520, 521, 110 Pa. 588. A person who has a contract of sale and delivery of goods to a street railway company is not a "contractor" within the statute giving contractors a lien on the structure. Pacific Rolling-Mills Co. v. James Street Const. Co. (U. S.) 68 Fed. 966, 971, 16 C. C. A. 68. "The word 'contractor,' when standing alone or not restrained by the context or particular words, may mean a subcontractor, or any person remotely engaged under contract and doing the work, as well as the original contractor. Such a person is a contractor as well as the original contractor. This has been frequently so decided, and such is the generic or more comprehensive meaning of the term." Mundt v. Sheboygan & F. du L. R. Co., 31 Wis. 451, 457. One who agrees to sell machinery, to be delivered free on board cars at his factory The term "contractor," as used in a bond and set up by the buyer, is a materialman, given by a railroad contractor conditioned and not a "contractor" for the furnishing thereof, so as to entitle the person from to pay all laborers, mechanics, and materialwhom he subsequently buys the machinery, men, and persons who supply such contractor and who delivers it to him, to a mechanic's with provisions or goods of any kind, will lien as a subcontractor under Burns' Rev. St. not be construed to include subcontractors. 1894, § 7255, the lien in favor of a material- Wells v. Mehl, 25 Kan. 205, 206. man not applying to a person from whom the materialman buys the machinery furnished by him, where the materialman is not authorized by the owner to purchase it or place it in the factory, and does not place it therein. Caulfield v. Polk, 46 N. E. 932, 933, 17 Ind. App. 429. Act April 9, 1872, pl. 47, provides that those employed by a contractor in any work on an oil well shall be entitled to a lien for their services. Held, that the word "contractor" meant only persons employed by the owner or lessees of the well, and did not embrace those who undertake to perform some special service in the construction of the well or opening of the same. Appeal of Gibbs & Sterrett Mfg. Co., 100 Pa. 528, 531. Within Laws 1850, c. 140, § 12, providing that, as often as any contractor for the construction of any part of a railroad which is in progress of construction shall be indebted to any laborer for 30 or less number of days' labor performed in constructing the road, the laborer may fix liability by giving certain notice, the term "contractor" means any one who may enter into a contract to construct a portion of a railroad, though he may not have entered into a contract with the company, though the statute does not use the term "subcontractor." Kent v. New York Cent. R. Co., 12 N. Y. (2 Kern.) 628, 630. In other words, the word "contractors" is to be understood to embrace all who have employed laborers, whether they be original contractors or subcontractors. Warner V. Hudson R. Co. (N. Y.) 5 How. Prac. 454, 456. CONTRACTOR'S LIEN. A contractor's lien, per se, is one that! arises by operation of law independently of the expressed terms of a contract. It springs out of the obligation to pay for the stipulated labor and the promised materials when furnished, provided the contractor shall give the notice required by statute. McMurray v. Brown, 91 U. S. 266, 23 L. Ed. 321. Thus, a resolution of a railroad company providing that a construction company which was a subcontractor should have a contractor's lien upon the railroad for work done and material furnished and claims purchased, implies simply a lien by contract, and not a contractor's lien. Richmond & J. Const. Co. v. Richmond, N. I. & R. R. Co. (U. S.) 68 Fed. 105, 110, 15 CONTRARY TO EVIDENCE; CONTRA- See pages 1547, 1548, 1549, post. CONTRIBUTE-CONTRIBUTION. In a statute authorizing a religious body to take and hold subscriptions or contributions in money or otherwise, only a power to take by gift is given, and not power to take by will. Brown v. Tompkins, 49 Md. 423, 431. "Contribution is the act of giving to a common stock, or in common with others; that which is given to a common stock or purpose." Parks' Adm'r v. American Home Missionary Soc., 20 Atl. 107, 109, 62 Vt. 19. "Contribute," as used in an agreement by which the parties recited that they subscribed and contributed, implied that the donations of each were parts, the whole of which was to form a common fund. Murray v. McHugh, 63 Mass. (9 Cush.) 158, 166. "Contributed," as used in Rev. St. 1893, 1169, providing that any person who shall receive bodily injury or damage to his person causeway, or bridge may recover, in an acor property from a defect of the highway, tion against a county, the amount of actual damages sustained by him, provided such such injury or damage by his own act or person has not in any way brought about implies that there was another cause to negligently contributed thereto, necessarily which the plaintiff's negligence might contribute, and though plaintiff's negligence might not alone be sufficient to cause the injury, yet if it contributed to such other cause then the plaintiff could not, under the second -for example, the defendant's negligenceagainst a county for injuries received on a contingency, recover; and in an action highway it was error for the judge to instruct the jury that, if "the injury resulted immediately from the defendant's negligence, then the defendant would be held liable in damages, even though to a certain degree the plaintiff has been negligent." McFail v. Barnwell County, 35 S. E. 562, 567, 57 S.C. 294. The word "contribute" means to give to a common stock or for a common purpose; to give or supply a part; to lend assistance; to have a share in any act or effect. Webst. Int. Dict. It is in the latter sense that it and the word "contributory" are used when applied to the negligence of a plaintiff; and necessarily contributory or assisting negligence can only be the partial, and not the entire, cause of an injury. Citizens' R. Co. v. Creasy (Tex.) 27 S. W. 945. As dues. In the by-laws of an insurance company providing that contributions of the members should not be less than a certain sum per year, and in a subsequent section providing that every member shall pay his monthly dues on or before a certain date, "contributions" will be held to mean the same thing as the word "dues." Mueller v. Grand Grove, U. A. O. D., 72 N. W. 48, 50, 69 Minn. 236. Loan implied. "Contribute," as used in an agreement by the manager of a certain business to contribute certain money to the business in consideration of a percentage of the profits, which were guarantied to amount to a certain sum annually, does not mean "loan," so as to entitle the manager to recover the same on severance of his connection with the business. Mack v. Wurmster, 36 S. W. 221, 223, 135 Mo. 58. As substantial assistance. Under a statute providing that no person shall be permitted to vote at a meeting of an incorporated church unless he shall have contributed to the support of such church is meant that he must contribute to its support according to the usages and customs thereof. This undoubtedly means substantial and vita! aid and support. Personal attendance and Tuttle, 21 Atl. 925, 929, 59 Conn. 1, 11 L. R. countenance might in one sense contribute A. 33. to the support of such an organization, but this is not the contribution intended by this if the person's negligent act solely contributIn commenting on an instruction that, statute. The statute means the necessary ed to bring about the injury of which he commaterial support, without which the organiza- plained, he cannot recover, the court say: tion cannot exercise its ordinary functions "The criticism is in the use of the word 'sole. and perform its customary and appropriately, and the contention is that the court duties and ministrations. It means the part- should have told the jury that, if both plaining with, and contribution of, a portion of tiff and the company were negligent, the one's worldly substance, in the usual and customary way, to be used in meeting and word 'contribute' its legal signification would plaintiff could not recover. To give to the defraying the expenses incurred by the church in the support of public and divine make the charge unintelligible, as one act cannot contribute solely to effect a given reworship. Merely attending as a worshiper, or taking a leading or a subordinate part in the exercises, or rendering some special gra tuitous service, will not answer this require sult, but only in connection with some other act, and there can be no sole contributory cause of an accident. We may assume, there fore, that the trial judge meant, if the negli ment of the statute. If the service rendered, however, is such as is usually and customari-gent act of the plaintiff produced or was the ly hired and paid for by such organizations, er." Memphis St. R. Co. v. Shaw, 75 S. W. sole cause of the injury, she could not recovand is by some understanding or agreement, 713, 714, 110 Tenn. 467. express or implied, rendered as an equivalent or in lieu of a contribution in money or prop erty, such service would undoubtedly be a CONTRIBUTING MEMBER. In the certificate of membership of a mutual benefit association declaring that the member, having complied with the conditions, is entitled to the benefit of said association in the sum of one dollar for each "contributing member," such term meant members in good and regular standing who had not forfeited their membership. Neskern v. Northwestern Endowment Ass'n, 15 N. W. 683, 684, 30 Minn. 406. CONTRIBUTE TO INTOXICATION. Under St. 1872, c. 63, § 4, providing that "every wife, child, parent, etc., or other person who shall be injured in person, property, etc., by any intoxicated person, or by reason of the intoxication of any person, shall have a right of action against any person * * * * CONTRIBUTING WRONG. A wrongdoer is not necessarily an outlaw, but may justly complain of wanton and malicious mischief. Therefore, where one was shot and killed while attempting to rob a chicken roost, his wrong in so doing did not constitute contributing negligence or wrong, so as to release the person shooting from liability therefor. Marks v. Borum, 60 Tenn. (1 Baxt.) 87, 93, 25 Am. Rep. 764. See "Voluntary Contributions." who shall, by selling or giv- CONTRIBUTION (In Practice). ing any intoxicating liquors, have caused or contributed to the intoxication of the person by whom an injury has been "Contribution" is defined as a payment done," refers to the direct and immediate re-made by each, or by any, of several having a sult of the selling or giving the intoxicating common interest of liability of his share in liquors by which the intoxication was caus ed. The liability attaches to the person sell- the loss suffered, or in the money necessarily ing or giving, and to no one else, and the sell-paid by one of the parties in behalf of the ing or giving must be to the person intoxicated, by whom the injury to the person or property was done, and must cause his in toxication. Bush v. Murray, 66 Me. 472. CONTRIBUTING CAUSE. A contributing cause of an accident "is one which under the same circumstances would always be an element aiding in the production of the accident." Broschart v. others. It is well settled that for the pur- he has paid more than his share of the debt, The right and duty of contribution is founded in the doctrine of equity. The doc trine of contribution is not founded on contract, but comes from the application of the principles of equity to the condition in which the parties to the contract are found in consequence of some of them, as between themselves, having done more than their share in performing the common obligation. That principle was first recognized and enforced in courts of equity, and it was only after it had been long and firmly established in those courts that the courts of law undertook to enforce it. Dysart v. Crow, 70 S. W. 689, 691, 170 Mo. 275. The doctrine of contribution rests on the principle that, when the parties stand in equali juri, the law requires equality, which is equity, and one of them shall not be obliged to bear the burden in ease of the rest. It is not founded on contract, but on the principle that equality of burden as to common right is equity, and the obligation to contribute arises from the nature of the relation between the parties. The claim for contribution has its foundation in the clearest principles of natural justice and in morals, since no one ought to profit by another's loss where he himself has incurred a like liability; and it seems but just that, where all are equally bound and are equally released, all should contribute in proportion toward a benefit obtained by all. Aspinwall v. Sacchi, 57 N. Y. 331, 336; Campbell v. Mesier (N. Y.) 4 Johns. Ch. 334, 342, 8 Am. Dec. 570. The right of contribution lies where there are tenants in common, who jointly hold a mill and take the profits only, and the mill falls into decay, and one of them will not repair it again. Campbell v. Meiser (N. Y.) 4 Johns. Ch. 334, 337, 8 Am. Dec. 570. into the common stock, and leave it there at the risk of the business. On payment the devotion must be actual and absolute, not apparent and illusionary. Moorhead v. Sey. mour, 77 N. Y. Supp. 1050, 1059. Indemnity distinguished. The doctrine of contribution is not found ed on contract, but on the principle that equality of burden as to a common right is equity; that wherever there is a common right the burden is also common. Indemnity, on the contrary, springs from contract, express or implied, and in a general way may be defined as the obligation or duty resting on one person to make good any loss or damage which another has incurred while acting at his request or for his benefit. Vandiver V. Pollak, 19 South. 180, 181, 107 Ala. 547, 54 Am. St. Rep. 118. Between joint tort feasors. Contribution is allowed only between defendants standing in equali juri; and there is no contribution, either at law or in equity. between joint trespassers. Peck v. Ellis (N. Y.) 2 Johns. Ch. 131, 136. Contribution is the sharing of a loss or payment among several; but among tort feasors who are knowingly such there can be no contribution. This rule applies to persons directly participating in or authorizing any willful trespass or any wrongful acts, or acts obviously of an unlawful character; but the rule is confined to cases where the person known that he was doing an unlawful act. seeking redress must be presumed to have The Hudson (U. S.) 15 Fed. 162, 167. Contribution is the sharing of a loss or It is a doctrine well established that, But there can be when land is charged with a burden, the payment among several. no contribution between trespassers or charge ought to be equal, and one part ought not to bear more than its due proportion; and wrongdoers. The exception is where the act is not clearly illegal in itself. Where a tort equity will preserve this equality by compelling the owner of each part to a just contri-is a known, meditated wrong there can be no bution. Stevens v. Cooper (N. Y.) 1 Johns. contribution, but where the party is acting Ch. 425, 431, 7 Am. Dec. 499. under the supposition of innocence, and the tort is one by construction or inference of law, there may be contribution. Bailey v. Bussing, 28 Conn. 455, 460. contribution against each other, although the Wrongdoers are not entitled to claim party injured obtains full satisfaction for his damages from a part of them only. Miller v. Fenton (N. Y.) 11 Paige, 18, 20. Contribution is bottomed and fixed on general principles of natural justice, and does not spring from contract. Dering v. Earl of Winchelsea, 1 Cox, 318. Where a traveler, in passing over a bridge which was maintainable by two counties, was injured by its breaking down, and recovered damages in an action for negligence against one of the counties, the other county was liable for contribution. The rule that there cannot be contribution between wrongdoers is confined Hickman v. McCurdy, 30 Ky. (7 J. J. to cases where the plaintiff must be presum- debt. Between sureties. CONTRIBUTION PLAN. CONTRIBUTORY INFRINGEMENT. A "contribution plan," as used in life insurance, is a plan by which the policy hold"Contribution," as the term is applied to er is allowed as a dividend the amount consureties, means that all sureties must con- tributed by his policy to the surplus. Contribute to the payment of the obligation intinental Life Ins. Co. v. Currier, 4 Atl. 866, case of a default of a principal. "The right 58 Vt. 229. of contribution among sureties is founded, not in the contract of suretyship, but is the result of a general principle of equity, which equalizes burdens and benefits. The common law has adopted and given effect to this equitable principle, on which a surety is entitled to contribution from his co-surety. This equitable obligation to contribute having been established, the law raises an implied assumpsit on the part of the co-surety to pay his share of the loss, resulting from a concurrent liability to pay a common debt. This jurisdiction by an action at law is therefore resorted to when the case is not complicated, and the more extensive and efficient aid of a court of equity is thus rendered unnecessary." Russel v. Failor, 1 Ohio St. 327, 329, 59 Am. Dec. 631. The right of one security to call upon his co-security for contribution, like the right of all the securities to call upon the principal for indemnity, arises from the principle of equity growing out of the relation which the parties have assumed toward each other. The equity springs up at the time of entering into that relation, and is fully consummated when the security is compelled to pay the debt. Wayland v. Tucker (Va.) 4 Grat. 267, 268, 50 Am. Dec. 76. Sureties have the right to claim contribution from each other in proportion to the amount paid by each upon the common debt, and this right is the result, not of any implied contract between the parties, but of an acknowledged principle or natural justice which requires that those who voluntarily assume a common burden should bear it in equal proportions. Burge, Sur. 384; Story, Eq. § 493. It is upon this principle that sureties are entitled to the benefit of all securities which have been taken by any one of them to indemnify himself against the principal debt; but, if one surety should obtain indemnity for a consideration paid by him, the other could not claim the benefit of such indemnity without paying his proportion of the consideration. White v. Banks, 21 Ala. 705, 712, 56 Am. Dec. 283. The liability of co-sureties for contribution originally grew out of a rule of equity which at length ripened into a principle of law, so that at this day courts of law and chancery entertain concurrent jurisdiction in giving a remedy to the surety paying the Contributory infringement is the intentional aiding of one person by another in the unlawful making or selling of a patented invention. Thomson-Houston Electric Co. v. Kelsey Electric Railway Specialty Co. (U. S.) 72 Fed. 1016, 1017. And this is usually done by making or selling a part of the patented invention with the intent and purpose of so aiding. The essence of contributory infringement lies in concerting or planning with others in an unlawful invasion of the patentee's rights. A contributory infringer necessarily only makes or sells a part of the patented invention, so that contributory infringement cannot be predicated on the rebuilding or replacing of the parts of a patented machine by Mach. Co. v. Jackson (U. S.) 112 Fed. 146, a purchaser for his own use. Goodyear Shoe 148, 50 C. C. A. 159, 55 L. R. A. 692. One who makes and sells an element of a combination covered by a patent with the intention and for the purpose of bringing about its use in such a combination is guilty. of contributory infringement, and equally liable to the patentee with him who in fact organizes the complete combination. ThomsonHouston Electric Co. v. Ohio Brass Co. (U.. S.) 80 Fed. 712, 721, 26 C. C. A. 107. A person who sells, to a licensee of a patent on a machine for setting lacing studs, studs of his own manufacture, knowing that they are to be used in the patented machine in violation of the license, and intending that they shall be so used, is guilty of contributory infringement. Tubular Rivet & Stud Co. v. O'Brien (U. S.) 93 Fed. 200, 203. |