Maryland Brick Co. v. Dunkerly

| Md. | Feb 24, 1897

Page, J.,

delivered the opinion of the Court.

The questions in this case arise .upon the bill of the Maryland Brick Company to enforce a mechanics’ lien against the four houses and lots mentioned in the proceedings. The firm of Swain & Banks claim a lien prior in time to that of the Brick Company, and the members of that partnership are made parties. The validity of both these claims is disputed, and forms the subject of the contentions of the parties.

ist. As to the claim of the Maryland Brick Company. It is insisted the lien was not filed within the period re■quired by the statute ; that is, within six months after the materials were furnished. Art. 63, sec. 23; Code.

The bill of particulars shows that all the bricks charged for were delivered more than six months before the filing of the lien except the single item of August the twenty-fourth, and it is contended that the materials charged in this and the six preceding items were furnished under other and distinct contracts than were those of the other items of the bill. The account shows that the Brick Company began to furnish bricks on the 20th of November, and continued to do so, at short intervals up to the thirtieth of May, when there was an interval of nearly three months, until the next delivery, on 24th of August. Now, in the case of Trustees v. Heise, 44 Md. 470, it was held that in the absence of evidence of an express antecedent contract made with respect to the exact quantity of materials or work to be furnished or done “ the character of the account, the time within which the work was done or materials were furnished, and the object of the work or materials may afford proper grounds for the presumption, that the work was done or the materials were furnished with reference to an understanding from the commencement, that such work or materials should be done or furnished if required by the builder and in such case it is from the last item in the account that the time within which to take the lien should date. But, on the other hand, when the materials are furnished for separate and distinct purposes, or at different times, and at considerable intervals, or under distinct contracts, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different parcels of material and not from the last item. Here the account shows a long interval between the date of the last item and of those that precede, and can therefore furnish no presumption that the belated items were furnished under a continuous contract. On the contrary, the long interval from 30th May to the 24th August seems to warrant an inference directly to the contrary. We are not without proof, however, as to the contract. Mr. Bokee, the president of the Brick Company, testified that the contract was-to furnish the brick for the erection and completion of seventeen houses on Mosher street and three on Carey. There was no stipulation as to the number of bricks, but the prices were fixed at $9, $17.50 and $25 per thousand, according to the kind used. The account shows that on the 10th, 16th and 30th of May bricks were furnished at ten dollars per thousand, and the proof shows that this charge was so made because these bricks were “ selected for paving purposes ” and were specially ordered for those purposes. There is nothing in proof to show any “understanding from the commencement” that the bricks costing ten dollars per thousand should be furnished. The original contract called for bricks at $9, $17.50 and $25 per thousand, and it could not be, that under this a charge could have been made at ten dollars per thousand. It would seem, therefore, that these bricks were furnished under a separate and distinct contract, and cannot properly be allowed as a part of the lien.

These observations apply only to the bricks charged for at ten dollars. But in May there were delivered 500 salmon, and on 24th August thirteen hundred and fifty red and salmon at the contract price. We find nothing in the record to rebut Mr. Bokee’s statement that these were delivered in pursuance of the antecedent contract, to furnish brick to erect and complete the twenty houses. These two items must therefore be regarded as parts of the running account and charges for material that it was understood from the beginning were to be furnished. The lien claim was filed within six months from the date of the last item and was therefore in time.

It is not requisite to entitle the Brick Company to maintain its lien for it to show that the bricks were actually used in the buildings, provided it bé proved that under its contract with the builder they were furnished to be used in the erection of the buildings. We need not repeat what has been heretofore said by this Court upon this point, in a recent case, when the subject was fully discussed. Maryland Brick Co. v. Spillman, 76 Md. 343.

2nd. The claim of Swain & Banks. The proof clearly establishes that the materials furnished by this firm were so furnished under one antecedent contract, for one entire purpose, viz., for seventeen houses on Mosher street and three on Carey, and were delivered continuously, month by month, and day by day, down to the thirtieth of June, 1887. The lien was also filed within six months from the date of the last item. It is objected, however, that it does not appear that the items in June, 1887, were not applied to the houses on Carey street, which the appellees claim' were released in the preceding March. Even if the proof justified the conclusion, that these houses were then released, we do not think the fact would impair the validity of this lien. The contract of Swain & Banks related to all the twenty houses as an entirety, and therefore, under the rulings in Spillman!s case, supra, it is not important into which house the materials went. If it were shown, that after the release of the Carey street houses, these materials went into them, the case would be brought within the decisions in the cases of Wilson v. Wilson, 51 Md. 160, and Nickle v. Blanch, 67 Md. 460. If materials were furnished and used in the Carey street houses after they had been released there could be no lien maintained against them therefor, and as a consequence of this there could be no lien for such materials upon the residue of the houses. But the burden of the proof to establish such a condition of fact, in a case like this rests, not upon the lienor, but upon the owner of the property, or whoever may be seeking to avoid the lien. Here there is an entire contract to furnish certain materials for certain houses, and if such were furnished, the lien, if the claim is properly filed, must be maintained against all the houses, unless it be affirmatively shown that the material man has done some act or entered into some agreement by which he has directly or indirectly waived his rights.

It is also contended, as to the property of Mrs. Mary E. • Sanderson there was a waiver of lien by the Brick Company, and also by Swain & Banks. Mr. Thompson testifies that when one of the houses was sold to her, Mr. Gaither, her counsel, required a waiver of all liens, and also a bond of indemnity, and that in pursuance of this demand, there was obtained from “all the lien claimants” a waiver as to the house she was about to purchase. This evidence is supported by the testimony of Mr. Sanderson, Mr. Gaither and Mr. Crowl. Mr. Sanderson, who is the husband of Mrs. Sanderson, testified, “ we exacted from Mr. Thompson a waiver of all liens and also a bond of indemnity,” and Mr. Gaither stated, there was a waiver of liens given in response to his requirement, apparently signed in a proper manner “and filled up in the proper places,” but he is unable to recall the names signed to it. Mr. Crowl, the surety on the bond of indemnity, swears positively that he knows the waiver was signed by the Brick Company and Swain & Banks, and “ all the parties who had the right of lien.” A copy of the bond is contained in the record, and there is proof of the loss of the waiver and the inability of the parties to produce it after diligent search.

To meet this proof, there is testimony of Mr. Bokee, who stated he could not tell from memory on which houses his company had waived liens, but he didn’t think it possible it could have waived liens against any of the houses for which “ liens had been filed, because it was his custom, either outside or in the office of the company,” to make & memorandum whenever a waiver had been signed, and record it on the daily blotter; that he had examined the blotter and found no record of a waiver of the lien on this lot. Mr. Banks is also positive there was no such waiver, because his firm kept a plat of the houses and when there was a waiver as to any of them they were marked by a clerk, on the plat, “ released;” and such plat did not show such a release as is now claimed. He seems to have no independent recollection, however, about the matter; he cannot remember whether he “ ever liened ” the houses on .Carey street; thinks he did not, but was settled with for them, but can’t tell how or when. Mr. Dunkerly, while he cannot state on what property, testified he had gone around with various waivers ; and that it is customary when new buildings are sold before the time within which liens may be filed has expired to exact bonds of indemnity and also waivers of liens. In this state of the case we are of opinion the waiver of lien on this house is established by a preponderance of evidence. Neither Mr. Banks nor Mr. Bokee is able to speak from his own recollection. Their statements are founded not upon the existence of memoranda, but upon the absence of them. On the other hand, the witnesses who support the waiver speak with positiveness from their own memoiy, and their statement is in accord with the probability that Mrs. Sanderson, as a reasonably prudent purchaser, would be likely to make a demand for a waiver as well as a bond of indemnity before consenting to part with her money.

(Decided February 24th, 1897. )

It follows from what has been said, the decree must be reversed and the cause remanded for a new decree in accordance with the views herein expressed. :

Decree reversed and cause remanded, ' the costs to be paid by the appellees other than Sanderson.