187 N.E. 126 | Ohio Ct. App. | 1933
The Ivorydale Lumber Company, *354 plaintiff in error here, brought an action against the defendants below, defendants in error here, to foreclose a mechanic's lien which it had filed.
The claim is on an account for lumber furnished the Merit Concrete Corporation, which was a subcontractor under the original contractor, James Stewart Co., for the erection of the Union Terminal Building, Cincinnati, Ohio, for the Cincinnati Union Terminal Company.
In substance the petition states that the materials, consisting of lumber, were sold by the plaintiff, the Ivorydale Lumber Company, to the Daly Lumber Company, defendant herein; the materials to be used for the constructing, erecting, and improving of the building in question. It alleges that the Daly Lumber Company had a contract with the defendant the Merit Concrete Corporation to furnish the materials in question, and that the materials were furnished by the plaintiff and used by the Merit Concrete Corporation in the construction of the building. The petition further alleges that there is due and owing to the plaintiff from the Daly Lumber Company the sum of $2,115.44. The petition further alleges that said materials were sold by the plaintiff to the defendant the Daly Lumber Company for the purpose of constructing the building in question, and that the same were so used; that the Daly Lumber Company had a contract with the Merit Concrete Corporation to obtain the materials in question, and that under the contract with the Daly Lumber Company the plaintiff was to deliver and transfer the materials from its lumber yards direct to the premises. Subsequently, the Daly Lumber Company was placed in the hands of Frank Woodward, as receiver.
The receiver demurred to the petition, which demurrer was sustained by the court of common pleas, and the plaintiff, not desiring to plead further, prosecutes error to this court.
The question of law raised here is: Whether or not *355 a materialman, furnishing materials through a contract with a materialman who furnishes lumber to a building, may have a mechanic's lien on the building for the value of the materials.
The claim of the defendant in error is that a materialman selling to a purchasing materialman is not entitled to maintain a mechanic's lien under the provisions of Section 8310, General Code.
Section 8310, General Code, provides: "Every person who * * * furnishes * * * material, * * * for erecting, altering, repairing, or removing a house * * * or other building * * * by virtue of a contract, express or implied, with the owner * * * and every person who shall * * * furnish machinery, materials, or fuel, to each original or principal contractor, or any sub-contractor in carrying forward, performing, or completing any such contract, shall have a lien * * *."
From the allegations of the petition it is clear that the plaintiff had no contract with the owner to furnish any material. The contract was with the Daly Lumber Company, which company had a contract for furnishing material. It did not furnish material to the original or principal contractor or subcontractor, but furnished the materials to the Daly Lumber Company, who had the contract. In other words, it leaves the plaintiff in the position of endeavoring to secure a mechanic's lien for the reason that certain lumber sold by it was used in the erection of the building.
This precise question has not been decided in this state. The question has, however, been considered by courts of other states. In the case of Van Cleve Glass Co. v. Erratt,
The subject is discussed in De Witt's Ohio Mechanics' Liens, in Section 34, page 78, and Section 310, page 471. We are in accord with the pronouncements *356 in this recognized authority in Ohio, and with the decisions of the other states.
We are of opinion that the plaintiff has no valid lien, and the court of common pleas was correct in so holding.
Judgment affirmed.
CUSHING and ROSS, JJ., concur.
