Beaman v. . Hotel Corp. Roofing v. . Beaman

Brogden, J. What is the legal test for determining the “final furnishing of materials,” or “the completion of labor” for a building project? C. S., 2470, provides in substance that ordinarily notice of lien upon real estate shall be filed “within six months after the completion of labor or the final furnishing of materials,” etc. In the case at bar the Hotel Corporation, the owner of the real estate, contends that the plaintiffs are not entitled to a lien upon the property. This contention is based upon certain facts appearing in the record to the effect that the hotel building was completed on 1 November, 1927, and actually occupied on said date, and that subsequently on 23 February, 1928, the parties in interest met together, checked over the various items of the contract and pronounced the work complete. Furthermore, in recognition of such completion the contractor wrote a letter on 20 April, 1928, admitting that the job had been finished and was “a credit to all concerned.” Hence when the notice of lien was filed by the plaintiffs on 30 March, 1929, more than twelve months had elapsed from the completion of the labor and furnishing of material for the structure, and that, therefore, the plaintiffs are not entitled to enforce a lien upon the property. On the other hand, the plaintiffs assert that in May, 1928, the Hotel Corporation took the position that the contract had not been completed for the reason that a large wire screen specified in the contract had not *422 been installed, and demand was made upon the contractor to complete the contract according to the terms thereof. Pursuant to the provisions of the contract the dispute so arising between the owner and the contractor, was referred to the architect, who ruled with the owner that the construction of the screen was necessary for the completion of the work. Thereupon the contractor procured the coplaintiif, Shuman Booling Company, to install said screen at a cost of $1,157.62, and that said work, not having been completed until October, 1928, a notice of lien filed on 30 March, 1929, was within the statutory period, and, therefore, enforceable against the property. A preliminary question arises at the threshold, and that is: Did the installation of the wire screen constitute a new and independent contract, or was such work done under and by virtue of the original contract between the parties? The original contract provided for the installation of the wire screen. The owner of the premises demanded such installation without extra compensation to the contractor. In pursuance of the terms of the original contract, the dispute was submitted to the architect who decided in favor of the owner and demanded the installation of the work. Manifestly, therefore, the screen was installed pursuant to the terms and provisions of the original contract between the parties. The legal inquiry involved has been discussed by various courts and textwriters. For example, the Supreme Court of Idaho in Gem State Lumber Co. v. Witty et al., 217 Pac., 1027, wrote: “Ordinarily, furnishing an article or performing a service trivial in character is not sufficient to extend the time for claiming a lien or to revive an expired lien, where the article is furnished or the service rendered after a substantial completion of the contract, and the article is not expressly required by the terms thereof.” In like manner the Connecticut Court in Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., 122 Atlantic, 102, quotes with approval the following: “'Where a service is performed or material furnished at the request of the owner, it will extend the time for claiming a lien or will revive an expired lien, as to a contract . . . substantially completed.” 35 L. R. A. (N. S.), 904. The authorities upon the subject are assembled in Breeding v. Melson, 143 Atlantic, 23, 60 A. L. R., 1252. The Delaware Court in that case said: “There is no conflict between the authorities as to the proposition that the time for filing a claim in a mechanic’s lien proceeding is computed from the date when the last item of work, labor or materials is done, performed or furnished, and that principle is, undoubtedly, correct. But the work performed and materials furnished must be required by the contract, and whatever is done must be done in good faith for the purpose of fully performing the obligations of such contract, and not for the mere *423 purpose of extending the time for filing lien proceedings. Therefore, the performance of labor or the furnishing of materials of a trivial character which are not expressly provided for by such contract and after it has been substantially performed will not ordinarily extend the time for filing a mechanic’s lien; this is especially true if such performance has been considered and treated by the parties as final and complete.” It is to be noted that in the foregoing case the last item was dated 21 October, 1921, and amounted to ninety-eight cents. The next item thereafter in the account was dated 15 April, 1922, and amounted to $3.40. Upon the facts, the Court held that the submission of the issue to the jury was correct. The pertinent decisions upon the subject tend to demonstrate that the courts throughout the country are disposed to look with favor upon extending the time for filing liens or reviving the right to file them when: (a) the material furnished or labor done is embraced within the original contract; (b) the owner assents or requires such additional labor or material; (c) the labor or material so furnished is not of a trivial nature, even after the substantial completion of the project. But if the project had been substantially completed, and the furnishing of subsequent labor or material is of a trivial nature, not within the terms of the original contract and not furnished in good faith but for the purpose of evading the applicability of the time limit, then in such event the contractor is not entitled to assert a lien upon the theory that such additional labor or material so furnished, extended the time or revived the right. When the principles of law are applied to the facts of the case at bar, it is manifest that the trial judge could not determine as a matter of law or give a peremptory instruction to the jury to the effect that the building contemplated by the contract was completed “during February, 1928.” The installation of a wire screen for a skylight 19 by 63 feet, requiring factory fabrication and costing $1,157.62, cannot be said, as a matter of law, to constitute work or material of a trivial nature. There is no evidence of unreasonable delay in furnishing said material from May, 1928, until October, 1928. Hence the exceptions to the instructions given the jury are sustained. Error.