54 Md. 71 | Md. | 1880
delivered the opinion of the Court.
On the 19th of February, 1819, George McLaughlin, the appellant, filed, against Andrew A. Reinhart, the appellee, a mechanics’ lien upon ten houses in Baltimore City, situated on Townsend Street. On the 26th of April, 1819, scire facias on this lien was issued, which having
The first clause designated the number of houses and their location, which the appellee proposed to build. The second describes the kind of work the appellant was to do on them, for which he was to “receive in payment one of said houses, situated on Denmead Street, Baltimore County, State of Maryland, at and for the price of three thousand dollars; said house to he subject to a mortgage of fifteen hundred dollars, and an annual ground rent of eighty-five dollars, payable semi-annually.” The third clause fixes the price of the labor, and. designates the material which McLaughlin was to furnish, and establishes the rate of compensation for it.
The next clause names the time from which the mortgage on the house to he taken in part payment is to hear interest, and from which ground rent is to commence; and establishes the rate of cash payment to he made as the work progressed.
Then follows a clause in the following language, “ And the said George McLaughlin agrees that he will execute and deliver to said A. A. Reinhart a release from mechanics’ liens and claims of all the said thirty-eight houses as soon as the same are respectively completed,' and ready for occupancy; and the said A. A. Reinhart agrees that he will employ the said George McLaughlin to do the work as he may require it, at the prices stipulated, and pay him in the manner specified, and upon the completion of all the said houses to convey to said George McLaughlin one of said houses and lots free and clear from all liens, claims and incumbrances thereon, except the annual ground rent and said mortgage.” Then follows a clause providing for past work on the Denmead street houses, to
For some time the appellant proceeded with the work, but growing dissatisfied, as the proof discloses, with the lack of promptness on the part of Eeinhart in meeting the cash payments stipulated for, indicated a purpose to quit work unless Eeinhart would give him security that he would be prompter in his payments. This the appellee declined to do but asked the appellant if he would release him and let him get some body else to do the work provided he paid him .for what was done already. To this the appellant assented, and signed the following paper which was presented him, “ Mr. A. A. Eeinhart, Dear Sir : This is to inform you that I cannot fulfil our contract dated seventeenth day of August, 1878; in order that you may make other arrangements to proceed with your buildings, I hereby release you from further liability therein from this date.” This paper having been signed they fixed on an arbitration as the mode of settling what was to be paid, and the appellant sent Ms arbitrator out to the place, as agreed, but the appellee did not and never did send his. Subsequently, the appellee proposed to give the appellant four hundred dollars for what was done, and agreed to give a note for the same, at three months, but never did so, and the appellant proceeded on his lien. The appellant testifies, (and there is no other proof but his testimony,) that he was ready and willing to go on with the work if the appellee had complied with his contract; and that he was stopped from working by order of the appellee, because he said he had not u money to go on for the present.” He also testified that the paper he signed releasing Eeinhart, was handed him by Eeinhart, but he does not know who prepared it. The Court having asked counsel if this was
Two questions are presented for our decision, first whether the appellant ever had a mechanics’ lien for his work and materials, and if he had, whether he has waived or lost it.
If he never had any lien, hut stipulated against one by the contract, as the appellee contends, the judgment must be affirmed ; or if he did not stipulate against a lien, but has subsequently so acted as to lose his lien, the judgment must stand. If, on the other hand, he did not stipulate against any lien, and has not by his conduct lost his right of action or waived his lien, the judgment was erroneous.
The lien which the law gives the mechanic or the material man, for labor and materials bestowed or used in the construction of a building, does not depend on the contract of the parties for its existence. It is a purely statutory lien. It pre-supposes a contract express or implied, for labor or material to be done or furnised, which existing, the law affixes a lien to secure the payment of the mechanic or material man, for what is done and furnished. The right to compensation must exist or there can he no lien. Sodini and Leiter vs. Winter, et al., 32 Md., 130.
The first and second sections of the sixty-first Article of the Code gives this lien in most implicit terms, and the third section of the same Article declares as explicitly that no one shall he regarded as waiving the lien by taking notes, giving credit, or taking any security unless the same he received as payment, or the lien he expressly waived.
In this case the appellee contends, that the lien has been expressly waived or contracted against; and the learned
It must be observed, that the liens on all the houses were not to be released all at once. Each house was to be released, as it was finished and ready for sale. The evident purpose was to free each house as it was done from the lien, that by its sale the appellee might be aided thereby in going on with his work. Meanwhile all the others remained liable for tbe claims or lien resting on them until they were respectively finished. No other construction of this contract is compatible with reason. If it had been the intention of the parties, that no lien under any circumstances should be claimed, it would have been very easy to say so. The mode of expression they have adopted, in our opinion excludes that idea. It certainly was not the intention of the parties, that if the appellee should fail in business, and the houses should never be finished, in such case the appellant was to have no lien on the unfinished structures, which would follow them into other hands. In such case surely he would have had his lien. If so, it was not waived by the contract. Having determined that the language of this contract does not warrant an holding that no lien was to be claimed, and the appellant having filed his lien within the six months allowed, it remains to be settled whether he has done any act which prevents his enforcing his lien in the way pursued in this case by scire facias.
It is a fact in the case, that work was done, and material was furnished for the houses of the appellee. The fact that he was employed to do and furnish, is also undeniable, for it is in proof that there was even a written contract about it, which has been abandoned, so far as its special provisions are concerned. . He has his remedy by action of assumpsit, for the value of what was done and furnished. This concurrent remedy, the mechanic or material man, has without resort to his lien. His lien is his security, but he is not bound to resort to it. It is an additional statutory remedy, which if resorted to, must be specifically followed.
If there has been a special contract, and the plaintiff has performed a part of it, according to its terms, and has been prevented by the act or consent of the defendant, or by the act of the law, from performing the residue, he may in general assumpsit, recover compensation for the work actually performed, and the defendant cannot set up the special contract to defeat him. That being so, no good reason can exist, for refusing him his lien, which existed from the beginning of the work, or the commencement to furnish the materials, and the actual beginning of the building. In this case the lien existed independent
Eor these reasons the judgment will be reversed, and the cause will be remanded for new trial.
Judgment reversed with costs, and cause remanded.