Blake v. Pitcher, 46 Md. 453

Blake v. Pitcher

46 Md. 453 | Md. | 1877

Bowie, J.,

delivered the opinion of the Court.

The appellees filed their claim for a lien under the Mechanics’ Lien law, against the appellant, Henry Blake, as owner, and Samuel K. Harris, contractor, on the 7th January, 1874, in the Superior Court of Baltimore City.

The hill of particulars consisted of charges for bricks furnished by the appellees to the appellant, Blake, from the 24th May, 1873, to 10th of July, inclusive, amounting to $1236.40.

To the scire facias issued on this claim against the appellant the defendants pleaded separately several pleas, on some of which issues were joined ; to others, the plaintiffs filed replications, to some of which the defendants demurred, and to others rejoined, to which rejoinder the plaintiffs demurred.

The defendant’s demurrer being overruled, and the plaintiffs’ sustained, the defendant, Blake, appealed.

The same questions being substantially involved in the demurrers and prayers, it will be unnecessary to notice the former more particularly.

*462Three hills of exceptions were taken by the appellant below, two to the rulings of the Court upon the demurrers and the third to the granting of the appellees’ prayer, and the rejection of the five several prayers of the appellant.

The appellant relies only on the last bill of exceptions, but the appellees have moved to dismiss the appeal, so far as depends upon the exceptions, because they are unnecessary, insufficient, and improper in form and substance. .

A bill of exceptions to the ruling of a Court on demurrer to the pleas, replications, or rejoinders is certainly an anomaly in the practice of this State. The pleadings which are a part of the record, show upon their face, the facts on which the question of law the demurrer arises, and a bill of exceptions is, therefore, wholly unnecessary.

The third bill of exceptions is objected to by the appellees because it does not sufficiently set out the evidence upon which the plaintiffs’ prayer was based, but states concisely that, having “ offered evidence tending to prove the hypothesis of fact set out in their prayer,” * * * * “ therefore, the plaintiffs offered the following prayer.”

We think this mode of presenting in the bill of exceptions a question of law arising upon any given hj^pothesis of facts, is conformable to the new rules prescribed by this Court in relation to appeals. To avoid unnecessary prolixity and detail, they require, “Bills of Exception shall be so prepared as only to present to the Court of Appeals the rulings of the Court below upon some matter of law, and shall contain only such statement of facts as may be necessary to explain the bearings of the rulings upon the issues or questions involved ; and, if the facts are undisputed, they shall be stated as facts, and not the evidence from which they are deduced ; and, if disputed, it shall be sufficient to state, that evidence was adduced tending to prove them “ but if a defect of proof be the ground of ruling or exception, then the particulars in which the proof is supposed to be defective shall be briefly stated, *463and all the evidence offered in anywise connected with such supposed defect, shall he set out in the hill of exception.” See Rule 5, Title Appeals, 29 Md.

The appellant’s third hill of exceptions, instead of repeating the facts hypothetically stated in the plaintiffs’ prayer, introduces that prayer with the preface before cited, referring to the prayer for the facts on which it was founded, which, in the language of the rule, sufficiently explained the bearing of the ruling on the question involved.

In cases like the present, where the prayer excepted to embodies all the evidence tending to support the theory of the instruction asked for, it would be wholly unnecessary to burden the record with a recapitulation of the same matter.

' The appellant submitted five prayers and the appellees one.

The first four of the appellant relate to the character of the contractor and the circumstances and conditions necessary to entitle the mechanic or material man to a lien upon the building erected or repaired.

The fifth, to the effect of taking a promissory note by the material man, from the contractor, upon the proceedings for a lien.

The principle asserted by those relating to the creation of the lien is, that unless the materials were furnished to the owner, builder, architect, or contractor for the erection of the houses, in pursuance of a contract with them or some of them, although the materials were used in the construction of the buildings, with the knowledge and consent of the owner, a lien will not lie in favor of the material man against the buildings.

The appellees’ prayer, asserts their right to recover if the jury find the facts embodied in its hypothesis, without basing their right upon the relation of Harris to Blake, as contractor for building the houses, or contractor for *464furnishing the bricks. Relying mainly upon the facts that the bricks were furnished Blake, after an interview with Blake, who referred them to Harris, and that the said bricks were delivered and used by Blake, in the construction of his houses, with the knowledge and consent of Blake and Harris, leaving it to the jury to determine whether the materials furnished, were furnished under a contract with Blake or Harris, or with both. In this aspect of the prayer, there is no necessary conflict between it and those submitted by the appellant. But it is argued that it is susceptible al§o of the broader interpretation, that' if the materials were furnished under the circumstances recited, the lien lies, whether Harris was contractor for the building of the houses, or only sub-contractor for the bricks.

These prayers involve the construction of the 61st Article of the Code of P. G. Laws, Title “ Mechanics’ Lien.” The appellant’s counsel regards the position of the appellee as “ utterly repugnant to justice and right, without foundation in reason or statute.”

The spirit in which the Mechanics’ Lien Law is to be interpreted, has been prescribed by the Legislature and impressed in such strong terms upon its face, that no Court can mistake its meaning.

It is enacted by section 41 of Article 61, “this Article shall be construed, and have the same effect, as laws which give general jurisdiction or are remedial in their nature.” Exclusive of this directory clause, the language of the Code in other sections, indicates that the most liberal and comprehensive meaning should be given to its several provisions in favor of mechanics and material men.

“Sec. 1. Every building erected and every building repaired, rebuilt or improved to the extent of one-fourth its value, shall be subject to a lien for the payment of all debts contracted for work done or materials furnished for or about the same.”

*465. ' Tf the contract for furnishing such work or mate-i l D'oth, shall have been made with any architect or builder, or any other person except the owner or owners of the lot on which the building may be erected, or his or their’agent, the person or persons so doing work or furnishing materials, or both, shall not be entitled to a lien unless, within sixty days after furnishing the same, he or they, or his or their agent, shall give notice in writing to such owner or owners, or agents, if resident within the city or county, of his intention to claim such lien.”

The decisions of this Court have all been in the same direction.

It is too late, if we were so disposed, to adopt a newline of policy in this respect.

. In the case of Sodini & Leiter vs. Winter, et al., 32 Md., 133, this Court, commenting on the fifth plea of the appellant, which was held bad on demurrer, said “ The fifth plea is, that the materials were furnished by the plaintiffs, on the individual and personal credit of the contractor, and not on the credit of the lot and building mentioned in the, writ. It does not aver the materials -were not furnished for the house, or that the plaintiffs did not know at the time of furnishing them, they were to be used in its erection.”

The appellant’s prayers in this case are obnoxious to the same objection. They entirely ignore the evidence of the appellees tending to prove the bricks were furnished for the appellant’s house, with his privity and consent, and were used in the erection of his buildings. In further consideration of the point raised on the demurrer to the plea, in the case just cited, this Court declared, “This peculiar lien does not originate in contract; it is purely a creature of positive statutory enactment, to be maintained and enforced to the extent and in the mode which the statute prescribes.”

*466The statute (it was said) contemplates a contract, between the material man and contractor, and that credit may be given to the latter, “and whilst there is no contract express or implied between the former and the owner, or credit given to the owner, yet the law provides a lien upon the buildings as a security for the material man, in case the contractor fails to pay for the materials, and this is done without affecting the liability of the contractor, on his contract of purchase, which still exists.” “It was the liability to and frequency of loss sustained by mechanics and dealers in consequence of the employment of a middle man or contractor which induced the Legislature to give a lien on the building.” Ibid, 134.

The first four of the appellant’s prayers, are defective because founded on a partial view of the evidence. They omit all reference to the facts from which an agency on the part of Harris for the defendant Blake might be inferred. All that is affirmed in these prayers might be found by the jury, yet, if Harris rvas the agent of Blake in purchasing the bricks of the appellees, they were entitled to recover.

It might perhaps be argued that agency was included in these prayers by implication ; still, the careful specification of Harris, as manufacturer and seller of bricks in one, and of Blake, as owner and builder in another, and the negation of Harris as architect, builder or contractor in a third, wdth total silence as to the relation of principal and agent bgtween Blake and Harris were calculated to mislead the jury.

The doctrine of agency were fully recognized and asserted in the case of Weber vs. Weatherby, 34 Md., 656.

In that case, Weber the owner and builder, agreed to sell a house in an unfinished state to one Banstead and to have it completed like one adjoining. Eanstead deposited $100 as a forfeit in case of non-fulfilment of his contract.

*467After making the agreement Ranstead purchased of Weatherby, a range and other articles which were delivered with the knowledge of Weker, and bricked up in the cellar. Ranstead having abandoned the contract and refusing to take the house, Weber retained the house and fixtures.

It was held that Ranstead “pro hac vice,” was the agent of Weber, and that Weber, and his house were liable. The former, according to the principles of natural justice, and the latter under the provisions of the statute, for the act of Ranstead.

The appellant’s, fifth prayer conflicts with the express language of the third section of the 61st Article of the Code of P. G. Laws which provides, that “ no person having such lien shall he considered as waiving the same by granting such credit, or receiving notes or other securities, unless the same be received as payment or the lien be expressly waived, but the sole effect thereof, shall he to prevent the institution of any proceedings to enforce said lien until the expiration of the time agreed on.”

This Court in 32 Md., 133, in the case Sodini vs. Winter, referring to the defence of waiver of lien by parol, attempted to be set up, declared “the law provides that no person having such lien shall be considered as waiving the same' by granting a credit, or receiving notes or other securities, unless the same be received as payment or the lien be expressly waived.”

The appellant’s fifth prayer, does not submit to the jury to find that the note was received as payment; the prayer appears to be framed entirely upon the general principles of commercial law independently of the provisions of the Mechanics’ Lien Law.

The principles announced in Glenn vs. Smith, 2 G. & J., 508, and Myers vs. Smith, 21 Md., 50, are well established, but have no application to a proceeding in rem. founded upon statutory enactments.

In the construction of the Code of Public General Laws or Acts of Assembly of our own State, this Court in doubt*468ful cases, might be aided by the decisions of other States, upon statutes upon the same subjects, couched in identical language. But wherever the Code or Acts of Assembly of this State have been construed, as in this instance, we are bound to adhere to the construction adopted.

(Decided 4th May, 1877.)

For this reason, it is in our judgment unnecessary to review the cases cited by the. appellant’s counsel, decided in other States, interpreting their local laws, in support of a theory conflicting with the decisions of this Court.

We do not construe the appellees’ prayer as asserting that any material man furnishing a contractor or sub-contractor, with articles which are afterwards used in the erection of any building, thereby acquires a lien on that building: but if the jury find the facts as alleged, they may find the materials were furnished in pursuance of a contract with Blake as owner, or with Harris as agent of Blake. Concurring with the Court below in granting the appellees’ prayer and rejecting the appellant’s, the judgment is affirmed.

Judgment affirmed.