152 N.E.2d 9 | Ohio Ct. App. | 1957
This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County dismissing plaintiff's action to foreclose a mechanic's lien.
One Podoyak was the owner of the premises on which he constructed a house. William Luft was the general contractor. Victor Arnold, one of the defendants herein, was a subcontractor engaged to paint the house. Plaintiff, appellant herein, The Durrel Paint Varnish Company, was the materialman which sold and furnished to Arnold the paint used for painting the house.
The plaintiff brought suit against Arnold for the sum of $
The appellant's sole assignment of error is that the court erred in its separate conclusions of law in rendering judgment for defendant Podoyak on the second cause of action.
In order to secure payment for work performed, Arnold furnished a sworn affidavit under Section
Section
"Whenever any payment of money becomes due from the owner * * * or whenever the original contractor desires to draw any money from the owner * * * under their contract * * * such contractor shall make out and give to the owner * * * a statement under oath, showing the name of every laborer in his employ who has not been paid in full and also showing the name of every subcontractor in his employ, and of every person furnishing machinery, material, or fuel, and giving the amount which is due or to become due to them * * * which statement *174 shall be accompanied by a certificate signed by every person furnishing machinery, material, or fuel to him."
The statute provides further that:
"The original contractor shall also deliver to such owner * * * similar sworn statements from each subcontractor, accompanied by like certificates from every person furnishing machinery, material, or fuel to such subcontractor."
This section provides further as follows:
"Until the statements are made and furnished in the manner and form provided for in this section, the contractor has no right of action or lien against the owner * * * on account of such contract, and the subcontractor has no right of action or lien against the owner * * * until he has furnished such statements, and any payments made by the owner * * * before such statements are made or without retaining sufficient money, if that amount is due or it is to become due, to pay the subcontractor, laborers, or materialmen, as shown by the said statements and certificates, are illegal and made in violation of the rights of the persons intended to be benefited by Sections
In view of the foregoing provisions of Section
"Any person, furnishing machinery, material, or fuel, or performing labor of any kind, as provided in Sections
The plaintiff did not avail itself of the protection afforded by the above provision by serving on the owner the requisite notice in writing. Section
"In making said payments the owner * * * may assume the names and amounts set forth in said statements and certificates to be true and correct and such owner is not liable for errors or omissions of said names and amounts in such statements and certificates, unless a notice has been served as provided in this section."
The last quoted provision affords protection to the owner in making payment if there has been an omission or error in the statements furnished under the provision of Section
It is true that Arnold himself, because of the false statement in his affidavit, could not have a valid lien for his work as a subcontractor. Gannon v. Potter, Teare Co.,
In the instant case the plaintiff could have protected itself by serving on the owner a notice as provided in Section
The case of Hoon v. Ross, 31 Ohio Law Abs., 275, decided by the Court of Appeals of the Second Appellate District in 1940, Judge Hornbeck writing the opinion, lays down the controlling principle of law. In that case the court had under consideration the identical statutory provision, then Sections 8312 and 8313, General Code (now Sections
"`Is an owner who pays the original contractor in reliance on the contractor's sworn statement under Section 8312 [General Code], protected against liens subsequently claimed by subcontractors or by persons furnishing labor or material, whose names were omitted from the contractor's sworn statement, and who, prior to payment to the original contractor, furnished no affidavits, certificates or notices provided for by Sections 8312 and 8313, General Code?'"
On page 279 the court discusses the legal effect of the last sentence in Section 8313, General Code (Section
In the cited case the omission consisted in the failure to set forth the name of the subcontractor; in the instant case the omission consists in failure to set forth the name of the materialman. In the cited case this court held that the statement in the affidavit, if true, absolved the owner; likewise in the instant case the statement in the affidavit of Arnold, if true, would absolve the owner in making payment. The first, second and seventh paragraphs of the headnotes in the cited case lay down the applicable principles of law, and are as follows:
"1. An owner who pays the original contractor in reliance on the contractor's sworn statement under Section 8312, General Code, is protected against liens subsequently claimed by subcontractors or by persons furnishing labor or material whose names were omitted from the contractor's sworn statement, and who, prior to payment to the original contractor, furnished no affidavits, certificates, or notices provided for by Sections 8312 and 8313, General Code.
"2. The burden of doing those things prerequisite to maintaining a mechanics' lien is upon him who receives the benefit of the lien." *177
"7. A statement of a contractor to an owner under Section 8313, General Code, which declared that no subcontractor was employed protects the owner in paying the full amount due to the contractor even though the contractor has intentionally failed to include the name of a subcontractor."
In our opinion the judgment of the Common Pleas Court was in all respects correct. There being no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.
Judgment affirmed.
HORNBECK, P. J., and CRAWFORD, J., concur.