Vinton v. Builders & Manufacturers Ass'n, No. 12,621

No. 12,621 | Ind. | Nov 23, 1886

Howe, J.

In their brief of this cause, appellant’s learned counsel say: u There is but one question presented by the record, viz.: What is the proper construction to be given to section 5 of the act of March 6th, 1883, in regard to mechanics’ liens?”

The act referred to by counsel is entitled “ An act concerning liens of mechanics, laborers, and material men,” was .approved March 6th, 1883, and, by virtue of an emergency declared, was in force from and after its passage. Acts of 1883, p. 140, el seq. Section 5 of such act reads as follows:

“To enable the mechanics or other persons furnishing material or performing labor, as above provided, to a contractor, to acquire such lien, he must at or before the time he furnishes the material or performs the labor, notify the owner or his agent that he is furnishing the materials or performing the work for the contractor.”

In our decision of this cause, we shall confine our opinion strictly to the consideration of the question, as above stated by appellant’s counsel. This question is fairly presented for our decision, by the record of this cause and the error assigned thereon. Without stating the record or any part thereof, it will suffice to say that it became a question in the cause below, whether or not the appellant as owner was entitled, under the provisions of section 5 above quoted, to notice in writing from the persons who were seeking to enforce alleged liens against her or her property, for materials furnished or labor performed to or for her contractor; or whether or not a verbal notice merely from such persons to her or her agent was a sufficient compliance with the requirements of such section of the statute, to enable such persons to acquire the lien mentioned therein. The court at special term held, and the general term affirmed such decision, ihat mechanics or other persons are not required, under such section 5 of the statute, to notify the owner or his agent in writing, but that a verbal notification to the effect specified therein, given at or before the time mentioned, to the owner or his agent, will be a sufficient compliance with such section of the statute to enable such mechanics or other persons to acquire the lien provided for therein. If this construction •of section 5, above quoted, be the correct construction, the judgment below must be affirmed. If, however, the true -construction of such section 5 required that appellant, or her agent, should have been notified in writing, then the judgment below must be reversed.

We are of opinion that the court below, both at special and in general term, has given the true construction to section 5, above quoted, of the act of March 6th, 1883, concerning liens of mechanics, laborers and material men. The word notify, used in such section, is a compound word of ■ Latin derivation, and its primary and literal meaning is “ to make known.” According to the best American lexicographers of the English language, Webster and Worcester, the secondary meaning of the word notify is “ to give notice to;” though it is conceded that the use of the word, in this •secondary sense, is not sanctioned by English usage. Webster gives and illustrates this secondary meaning of the word ■“notify,” as follows: “To give notice to; to inform by words or writing, in person or by message, or by any signs which are understood; as, the constable has notified the citizens to meet at the city hall; the bell notifies us of the time of meeting.” It is clear from these secondary definitions of Webster, and clearer still, if possible, from his illustrations, that the word notify never imports or implies, of necessity, a notice in writing. Whenever it is intended that the word “ notify,” as used in a statute, shall signify a notice in writing, we think that such intention should be expressed in words, or should be implied by, or be apparent from, other provisions of the same statute. There is nothing in the statute under consideration to indicate that the word “ notify ” is used in section 5 of the act, in any other than its primary and literal meaning. On the contrary, we think it clearly appears from all the provisions of the statute, that whenever it was intended by the law-making power that notice in writing must be given, such intention is expressed therein in clear and unmistakable terms. Indeed, the rule is general that, unless otherwise provided by statute, a verbal notice will, in all cases, be as effective as a written notice, provided it conveys the necessary information between the proper parties, at or within the prescribed time.

Filed Nov. 23, 1886; petition for a rehearing overruled Feb. 1, 1887.

What we have said, disposes of the controlling question in this case, adversely to the views expressed by appellant’s counsel in argument. The conclusion we have reached, that a verbal notification to the appellant or her agent was a sufficient compliance with the requirements of section 5 of the statute, so far as the kind of notice is concerned, necessarily leads to the affirmance of the judgment below. For the facts found by the trial court fully support, we think, its conclusions of law, to the effect that the authorized agents of appellant were verbally notified by the appellees, at the proper time, that they were severally furnishing materials for her contractor.

The judgment is affirmed, with costs.