Booth v. Vonberen

Hall, J. All the facts having been found under the issues raised by the plaintiff’s reply to the defendant Mansfield’s answer, it is unnecessary to consider the ruling of the trial court upon the plaintiff’s demurrer to that answer. The only question presented by this appeal is whether, upon the facts found, Mansfield has, under our statutes, a valid mechanic’s lien upon VonBeren’s land and building. Mansfield was not an original contractor for the construction of the house in question, nor did he have a written contract with the original contractor assented to by the owner. To acquire a valid lien for the materials which he furnished, it was therefore necessary for him to comply with the provisions of §§4136 and 4137 of the General Statutes. The former required him, within sixty days after he had ceased to furnish such materials, to lodge with the town clerk of New Haven his certificate in writing, describing the premises, the amount of the claimed lien, the date of the commencement of the furnishing of materials, stating that the amount claimed was justly due, as nearly as the same could be ascertained, and subscribed and sworn to by him. The latter required him, after commencing, and not later than sixty days after ceasing, to furnish the materials, to give written notice to the owner of his intention to claim a lien therefor on said building. *304 Mansfield gave one notice, and lodged two certificates. He gave the notice March 25th, 1908, and lodged the first certificate the following day, and lodged the second certificate three months later, June 29th,'1908, without further notice. The decisive question is, did he acquire a lien under either or both of these certificates? Although one may properly give notice, under the statute, of his intention to claim a lien for services or materials which he has commenced, but has not yet ceased, to render or furnish, he cannot, by lodging a certificate, acquire a lien for services or materials thereafter rendered or furnished. The materials or services for the furnishing or rendering of which a lien is sought to be acquired by the lodging of a certificate, must have been furnished or rendered before the certificate is lodged with the town clerk. Section 4136 requires the certificate to be lodged within sixty days after the materials or services have been furnished or rendered, and requires it to state the amount of the claimed lien, and that that amount is justly due. Under his first certificate, therefore, Mansfield could only acquire a lien for materials furnished prior to March 26th, 1908. But he actually furnished no materials to Humphrey after December 27th, 1907, and furnished no materials to any person for this building between that date and March 18th, 1908, when he began furnishing materials to Murdock, which are clearly not embraced in the first certificate. He, therefore, neither gave his notice, nor filed his first certificate, within sixty days after he ceased furnishing the materials described in that certificate, unless he can properly be regarded as not having ceased to furnish materials on the 27th of December, 1907, but as having continued to furnish materials after December 27th, 1907, and until a date within sixty days prior to March 26th, 1908, or can be excused for having failed to file his certificate of lien for the materials described in his certificate within sixty days from the time he ceased to furnish them. *305 It does not appear that Mansfield was under any express contract with Humphrey to furnish to him even the materials furnished prior to December 27th, 1907. Much less does it appear that he ever contracted with Humphrey to furnish to him, or to any one else, any other materials for the VonBeren house than those furnished on and prior to December 27th, 1907, or that he was under any obligation to do so, or that Humphrey, or any other person, was under any obligation to purchase other materials of him for that purpose. Humphrey was merely a customer of Mansfield. While Mansfield may have intended, in October, 1907, when he commenced to furnish materials to him for the VonBeren house, to supply Humphrey with all the materials he might require for that purpose, and while the furnishing of materials from October 21st to December 27th, 1907, may properly be regarded as a continuous transaction, it is not found, nor does it appear, that at any time after December 27th, 1907, and within sixty days prior to March 26th, 1908, he even intended to furnish Humphrey any further materials for the VonBeren house, nor that prior to March 18th, 1908, or at the earliest prior to the 10th of March, when he learned that Murdock had been given the contract of completing the work, he intended to furnish further materials to any one for the Von-Beren house. Mansfield learned early in February, 1908, that Humphrey had stopped work on the VonBeren house, and knew some time before filing the first certificate that Humphrey was in failing circumstances. We have the evidence of Mansfield’s own statements that he should not be regarded, and has not regarded himself, as having continued to furnish materials during the period of more than sixty days between December 26th, 1907, and March 18th, 1908, when he commenced to furnish Murdock, and during which period he actually furnished no materials for this house to any person. He expressly states in his certificate of March 26th that he ceased to furnish materials on the *306 27th of December, 1907, and again in his second certificate of June 29th, 1908, he repeats the statement that on the contract with Humphrey he ceased to furnish materials on the 27th of December, 1908, and again commenced with Murdock on the 18th of March, thus clearly leaving the interval between December 27th and March 18th when he did not consider that he was furnishing materials for this house, and he does not claim that he made these statements under any mistake. It is the policy of our law that incumbrances upon real estate shall appear of record. “The statute allows mechanics and materialmen sixty days in which to file their liens after their work is performed or materials furnished, and for obvious reasons it does not mean to allow a longer period.” Flint v. Raymond, 41 Conn. 510, 514. Upon the facts before us Mansfield cannot be regarded as having furnished materials between December 27th, 1907, and March 18th, 1908. His first certificate was therefore filed too late to enable him to acquire the lien claimed therein. When Mansfield filed his second certificate, June 29th, 1908, claiming a lien for both the $827.77 for materials furnished Humphrey and the $247.94 for materials furnished Murdock, he had already been paid the latter sum, and for all materials he had furnished to any person for the VonBeren house since December 27th, 1907. He, therefore, acquired no lien under his second certificate, unless the furnishing of materials to Murdock after March 18th, 1908, gave him a lien for those furnished Humphrey prior to December 27th, 1907. Waiving the question of whether this second certificate is rendered invalid by the misstatement in it that there was due Mansfield $247.94 for materials furnished Murdock between March 18th and May 1st, 1908, when in fact Mansfield had been fully paid for all the materials he had furnished for the VonBeren house since December 27th, 1907, and waiving also the further question of whether this certificate was filed within the *307 statutory period of sixty days, since it appears that Mansfield ceased to furnish materials to Murdock on the 24th of April, unless May 1st should be regarded as the day when he ceased to furnish such materials, because on that day Mansfield furnished Murdock four clothes posts for the VonBeren premises, — Mansfield still acquired, under this second certificate, no lien for the materials furnished prior to December 27th, 1908. The materials furnished to Humphrey and those furnished to Murdock for the Von-Beren building, in so far as they were furnished under contracts, were furnished by Mansfield under entirely separate and independent agreements with each of these two persons. Having, by delaying to file his certificate within sixty days from the time he ceased to furnish materials to Humphrey, lost his right to a lien for such materials, the two separate transactions of furnishing to Humphrey and to Murdock cannot be tacked together so as to revive that lost right, or so as to extend the time for filing a certificate for the materials furnished Humphrey. Farnham v. Davis, 79 Me. 282, 9 Atl. 725 ; Noye Mfg. Co. v. Thread Flouring-Mills Co., 110 Mich. 161, 67 N. W. 1108 ; Maryland Brick Co. v. Dunkerley, 85 Md. 199, 36 Atl. 761 ; Nye & Schneider Co. v. Berger, 52 Neb. 758, 73 N. W. 274 ; Brown v. Allis Co., 98 Wis. 120, 73 N. W. 656 ; King, Gilbert & Warner v. Cleveland Ship Building Co., 50 Ohio St. 320, 34 N. E. 436 ; Phillips on Mechanics’ Liens (2d Ed.) §324. The defendant Mansfield has no lien upon the VonBeren building, and no part of his claim of $869.15 should have been deducted from the sum due Humphrey from Von-Beren. There is error, and the case is remanded for the entry of judgment in accordance with the views above expressed. In this opinion the other judges concurred.