116 A. 563 | Md. | 1922
This is an appeal from a decree of Circuit Court No. 2 of Baltimore City, providing that unless the defendants paid to the plaintiff (appellee) within thirty days, the sum of $975, with interest from November 18, 1920, and the costs, the property described should be sold by the trustee named. The Seaboard Engineering Company contracted with Robert J. Gill to erect eight two-story brick houses in Baltimore City, and on the 24th of July, 1920, that company and Thomas Mullan entered into a contract by which Mullan agreed to grade the lots from the backs of the houses to the *5 rear line of the lot, for which the company agreed to pay him $2,400 as therein set out. In the agreement there was this provision:
"It is understood that this is to be a rough steam-shovel job of grading, and no trimming up or hand work will be necessary."
Mullan gave Gill notice of his intention to claim a mechanics' lien on the eight houses for $975 — designating $121.87 1/2 as his claim against each house and lot, and on the eighteenth of November, 1920, filed his lien. His account was made up of $2,400 for excavating, begun July 12th, 1920, and completed October 23, 1920, as per his contract with the engineering company, and $75 for grading begun July 19th, and completed October 23, 1920, as per verbal agreement with that company, entered into July 17, 1920 — thus making, $2,475. That was credited with nine payments amounting to $1500 — leaving the balance of $975, as claimed by him. The $75 was for "cutting away the earth for an alley alongside the houses," which was outside of the original contract, and seems to have been verbally made earlier than the written contract, which is dated July 24th.
By section 1 of article 63 of the Code, entitled "Mechanics' Lien," it is provided that: "Every building erected and every building repaired, rebuilt or improved to the extent of one-fourth its value in Baltimore City and in any of the counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same, and in the counties, every such building shall also be subject to a lien for the payment of all debts contracted for materials furnished for or about the same." It is seen that in Baltimore City there is no provision for a lien for materials furnished.
It is contended by the appellant that, as in running the steam shovel there was the use of coal, lubricating oil, etc., and a depreciation of the shovel, and a profit on the contract, which items could not be included in the lien as work done *6
but should for the most part be treated as materials, there can be no lien filed for the lump sum of $2400 — the items being in no way subdivided or apportioned. It is well settled that: "When lienable and non-lienable items are included in one entire contract for a specific sum, and the value of the lienable and non-lienable items is not apportioned, but is made the basis of a lumping charge, no lien can be enforced." 20 Amer. Eng. Enc.of Law 359, quoted with approval in Evans Marble Co. v.Internat. Trust Co.,
In Evans Marble Co. v. Internat. Trust Co., supra, after saying that, when a party supplies material and also does work on a building under an entire contract, and "the compensation to be paid therefor is one entire price or lump sum for both labor and material, so as to make it indistinguishable what is intended to be paid for labor and what for materials," he is not entitled to any lien in Baltimore City, where a lien can only be filed for the payment of debts contracted for work done, JUDGE JONES went on to say: "It is also claimed that the contract of Bevan embraced materials as well as work to be furnished in that it provided that he should furnish models for the work to be done thereunder. The furnishing of these models, however, was not a furnishing of materials for the building. These were not material to go, or to be incorporated therein. They were intended as a means of guiding and fashioning the work to be done and as an aid to the proper execution of the work; and could therefore be properly taken into account in fixing a suitable price for the same. The contract was for work only. The models were but an instrumentality for its accomplishment."
There is nothing in the case of Southern Md. Bank v. Nat.Surety Co.,
We find nothing in the above or any other Maryland cases which tend to support the appellants' contention as to the coal, oil, etc., and there is still less reason for holding that the depreciation of the steam shovel is to be taken into consideration in determining such a question as is before us. A prudent contractor or other owner of such a machine may, in keeping his accounts, very properly allow some depreciation on it from time to time, as he might very well want to know what a machine which cost him $10,000, as this shovel did, was worth, and, in making a contract for doing work, he would take into consideration a proper depreciation of his shovel when the price was agreed upon, just as he does when he estimates the profits he can make out of a job of work, but there can be no valid reason why he would have to lose the *9 amount of such depreciation or his profits, if he protected himself by filing a mechanics' lien. A contractor or sub-contractor can of course employ others to help him in the work, and he can use such instrumentalities in doing this as he may find desirable, as is shown by what we said in Evans MarbleCo. v. Internat. Tr. Co., supra.
There can be no more reason for holding that the value of the coal or lubricating oil used in connection with running a steam shovel would prevent a lien under this statute for work done, than the cost of feed for horses would, if they were used for shovels or other instruments in such work as grading, excavating, etc. In the note to Gilbert Hunt Co. v. Parry,
The cases cited by us are sufficient to show that the weight of authority is not with the appellant, as claimed by him, on the question, and it seems to us that both upon authority and reason the lower court was right in not rejecting the claim upon the ground we have been considering.
The next question we will consider is whether the notice of intention to claim a lien was given within the time fixed by the statute — that is to say, "within sixty days after furnishing the same." The notice was served on November 4, 1920. Although Mullan left the property, taking with him his steam shovel and other implements, in the early part of August, the evidence shows that, while his work was for the most part completed, there was yet to be removed a quantity of stone and a large tree which, according to the witnesses, were unquestionably included in his contract, and he did not finish that work until Oct. 23. Mr. Clapham, the president of the engineering company, had told him that that must be done before he would consider the job completed and pay him what the company owed him. He testified that there was a large stone, approximately twelve tons, in the steam shovel operation, and it was too large to be taken out with the shovel without being broken up. He added: "It was up to Mr. Mullan to take it out. Also there was a tree on Mondawmin Avenue, and Mullan was to take both the stone and tree out." Mullan made some explanation as to why they were not removed sooner, but whether or not that would be satisfactory, he testified that Mr. Clapham said he need not hurry about those items. We are satisfied from the evidence that the delay was not for the purpose of bringing the notice within the sixty days in order to support his lien. It was said for the appellant that his taking two notes for $400 each, which were dated August 2d 1920, showed that Mullan's contract was considered completed, as the agreement between him and the engineering company provided for payment of $200 on July 23rd, $200 on July 30th, and $1,200 on completion of the work, and for the balance two notes *12 of $400 each, dated on the day of the completion of the work, were to be given. But although the work was undoubtedly for the most part completed, there was still what we have spoken of to be done, and on August 2nd, when the notes were given, the engineering company still owed Mullan $2,000 on that contract — the last payment made by it being as late as October 11th, and then leaving $900 still due. It is clear that the date of August 2nd was not regarded by them as the time when the contract was actually completed in full, and the engineering company still had in hand much more than sufficient to protect itself when it gave the notes.
It is also contended that before the work was completed the Massachusetts Bonding and Insurance Company had taken it over, and hence the sub-contractor could not "revive" his lien by the action taken after the termination of the contract between the principal contractor and the owner. It is not entirely certain that the bonding company did take charge before Mullan started to complete the job, but assuming that it did, we cannot hold that Mullan could not for that reason complete his work and give the notice within sixty days from its completion. The fact that some one else had taken over the work of a contractor certainly could not prevent a sub-contractor from giving the notice, if given within the sixty days. But in this case the bonding company took over the work as the surety of the engineering company for its own protection, and it was really being done for the benefit of the engineering company as well as the bonding company. The cases of Greenway v. Turner,
The only remaining question is as to the $75 allowed in the decree in addition to the balance due on the $2,400 contract. There was error in that, as it was shown by Mullan himself that it was a separate contract which he performed shortly after beginning work. It is not contended that it was not done before he left in August, and, of course, a notice on November 4th was not within time. When materials are furnished under separate contracts, the right to a lien must date from the time of furnishing the different parcels of material and not from the last item. Trustees of Germ. Luth. Church v. Hesse Co.,
It follows that the decree must be reversed to the extent of the item for $75, but as the position of the appellee is sustained for the most part we will direct the costs in this Court to be equally divided.
Decree affirmed in part and reversed in part, and causeremanded, each side to pay one-half of the costs in this Court,including the transcript, and the appellant to pay the costsbelow. *14