51 Md. 162 | Md. | 1879
delivered the opinion of the Court.
This is a proceeding to enforce a mechanic’s lien upon certain houses belonging to Treusch, the appellant, for materials furnished O’Connor, the contractor.
The right to enforce a lien in cases of this kind is not founded upon privity of contract with the owner, but rests solely upon statutory law. The lien attaches upon delivery of the materials, and upon compliance on the part of the material man with the provisions of the law, and this too, irrespective of a contract either expressed or im
The second exception presents, however, a different question. The last item in the account, for materials is dated November 4th, and one of the questions in dispute between the parties, was whether the houses were finished and accepted by the owner at the time the materials charged in this item were delivered. The appellees offered to prove that on the 3rd of November they called on O’Connor and inquired whether the houses were finished and whether he was ready to settle, to which- he replied, he was “ not ready to settle and would want right smart more lumber for the houses.”
To the- declarations of O’Connor as tending to prove that the houses were unfinished, the appellant, Treusch, objected. Now it is very clear that such declarations could not be offered in evidence against Treusch, unless made by authority either express or implied. The relation between the owner and builder is not that of principal and agent, and although the building is liable for materials furnished, this liability is not founded upon the principle of agency between the parties, but is the creature oí positive law. Where a lien is claimed upon the property of the owner for materials furnished a contractor, and the question is whether the building was finished and accepted, at the time of the delivery of the materials charged, we know of no principle upon which the declarations of the contractor, not made in the presence of the owner, can be offered in evidence to bind the latter. The Court erred therefore, in admitting such declarations.
Although the relation between the parties is not one of agency, yet the statute provides that the building shall
We see no objection to the notice of intention to claim, a lien. The object of such notices is to enable the owner to retain whatever money may be due the contractor, and to apply the same to the payment of the lien claimed. The law requires that it shall be signed by the party furnishing the materials or his agent. The notice is not liable to objection on the ground that it was signed by the attorneys of the appellees, provided it was done with the authority of the latter.
In regard to the claim to be filed by the material man, the Code requires it shall set forth:
1st. The name of the party claiming the lien, the name of the owner, and the name of the contractor.
2nd. The amount claimed to be due, the kind and amount of materials furnished, and the time when such materials were furnished.
3rd. The locality of the buildings and the number of stories of the same, or such other matters of description as may be necessary to identify the same. Sec. 19, Art. 61, Code. All these matters are clearly and distinctly set forth in the claim filed by the appellees.
We come now to the questions of law involved in the several prayers granted and in those refused by the Court. And here it is necessary to understand precisely the matters in dispute between the parties.
The appellants contended that the appellees were not entitled to the lien claimed—
1st. Because the materials were furnished to the contractor under separate and distinct contracts, and that notice of intention to claim a lien had not been filed within the time prescribed by the statute.
. 3rd. That the houses were finished and accepted by the appellant as owner, and that the contract between him and O’Connor, the builder, was at an end prior to the delivery of the materials charged on the 4th of November.
The appellant was entitled to have these several questions submitted to the finding of the jury. Now the first and second prayers of appellees ignore entirely the question whether the houses were finished, or whether they were accepted in good faith by Treusch, the owner, and the contract between him and O’Connor, the builder, was at an end on the 4th of November, when the last delivery of materials was made.
In Greenway vs. Turner, 4 Md., 296, it was held, that the liability of the owner does not attach by any act of his own, but is created entirely by the statute, and that if the contract between him and the builder was at an end at the time of the delivery of the materials, no lien or claim against the owner or his property could result to the material man, from such delivery. The Court said:
“ The party furnishing the materials has the duty imposed upon him by the Act of Assembly, which was designed mainly, if not exclusively, for his benefit, of seeing that he is dealing with the person who is actually the builder or contractor at the time the materials are furnished. If- the materials were furnished by virtue of an express authority or direction from the owner of the building, there might be some reason for requiring some notice equally, express revoking the authority or direction. But where the authority to charge and bind the owner, alone results from the contract between him and the builder, that authority must be taken as having ceased as soon as the contract ceases.”
It was argued that this case is distinguishable from Greenway vs. Turner, because Treusch, the owner, had in hands at the time the lien was filed, an amount due O’Connor, the builder, sufficient to pay the lien claim; and also because he was entitled under the contract with Treusch, to a deed for one of the houses, which in fact had not been delivered. But the right of the material man to his lien, does not depend on, nor is it in any manner affected by the question whether the owner has or has not money in his hands due the builder, nor whether the former has performed his part of the contract with the latter. As we have said in a former part of this opinion, the lien attaches upon the delivery of the materials, and this, irrespective of the contract or dealings between the owner and builder.
The proposition presented by the appellants’ second prayer is, so far as this case is concerned, a mere abstract one, and there was no error in refusing it. How far it is the duty of a material man to know that the materials furnished are such as are ordinarily used in buildings of the kind for which they are furnished, is a question not necessary to be considered here, because there is no evidence to show that the claim filed, is liable to objection on that ground.
Nor do we think the appellants have any right to complain of the refusal to grant their third prayer. The question whether the materials were furnished under a continuous contract, or under distinct and separate contracts,
The fourth, fifth and sixth prayers were also properly refused. They asked the Court to exclude from the jury, the consideration of certain items in the account, because they were delivered at long and unreasonable intervals.
The question in regard to the nature of the contract, whether it was a continuous one, or whether the materials were purchased under separate contracts, were questions for the jury. The evidence in this respect was conflicting. If the materials were delivered under a continuous contract, the Court had no right to exclude certain items on the ground that they were delivered at long intervals. Such deliveries were matters for the consideration of the jury, in determining whether the materials were furnished under a continuous contract, or under separate contracts with the builder.
For these reasons the judgment must be reversed and a new trial awarded.
Judgment reversed, and new tried awarded.
