68 W. Va. 681 | W. Va. | 1911
This is a mechanic’s lien suit brought in the circuit' court of Harrison county by the Southern Pine Lumber Company and the Williams & Davisson Company, two corporations that furnished materials to the C. A. Jones Lumber Company, also a corporation, to be used in the construction of a dwelling house
Plaintiffs were materialmen; and section 3 of chapter 75, Code 1906, requires a laborer or person furnishing material to a contractor to be used in the construction of a building for the owner, “to file with the owner or his authorized agent an itemized account of the labor done or material or machinery furnished, verified by affidavit, within thirty-five days after the same is performed or furnished.” The bill alleges that such accounts and notices were served upon said Bailey, and it exhibits the accounts and notices, showing the form of the notices and the manner of the service. It is asserted that the service of notice is not sufficient. The notices were served by the sheriff; and his return shows that it was served within thirty-five days by leaving a copy thereof with Bailey’s wife at his usual place of abode and explaining to her the purport thereof, she being a member of his family over sixteen years of age, and he not being found. The questions at once arise: (1) What effect is to be given to the sheriff’s return? and (2) is a notice thus served a compliance with the statute? Section 1 of chapter 121, Code 1906, makes it the duty of a sheriff to serve notices within his county, when he is required to do so, and to make return of the manner of his service; and, while his return in case of service of a notice may not be treated as a verity as it is in the case, of his return upon process emanating from a court, still his service and return of a notice is an official act, and is to be regarded as prima facie true. Bowyer v. Knapp, 15 W. Va. 277; Barksdale v. Neal, 16 Grat. 314.
The wordg “file with the owner” are equivalent to the words “give notice to the owner,” or “serve notice upon the owner.”
■ It is insisted that the cause was not properly matured for reference to a commissioner at' the time the court referred it, and that the order of reference was error. FTo objection appears to have been made to the order of reference; all parties appeared
The owner did not have his contract 'with the principal contractor recorded and it is urged by counsel for appellees that section 5, of chapter 75, Code, operates to dispense with notice in the case of the materialman who furnishes material to the eon-trac|tor, by making the contractor the agent of the owner. We do not so interpret the statute. It does not dispense with the notice required by section 3 of same chapter. Section 5, defines more particularly the owner’s liability, and makes his property liable to the materialman for the value of the material furnished, notwithstanding the owner may have paid the contractor the ■whole of the ‘contract price. It removes any doubt that might have existed as to the effect to be given to section 3 in case the owner had paid the contractor the contract price in full, before he had been given notice of the lien. But it does not constitute the contractor his agent to the extent of dispensing with notice. It also provides the means ‘whereby the owner may limit his liability to the sum which he has agreed to pay the contractor. Bailey’s failure to record his contract with the contractor made his property liable to the materialman’s lien for an amount greater than he had agreed to pay .the contractor. The case, therefore, seems to be a hardship upon Bailey, but our duty is only to declare the law, not to make it; and'such we find the law to be. The statute provides a means whereby Bailey might have limited his liability to the amount he had contracted to pay
We find no error in .the decree and it will be affirmed, and the cause remanded for further proceeding.
Affirmed.