Witman v. Walker

[186] The opinion of the Court was delivered by Sergeant, J. The Act of 16th June 1836, section 12, prescribes three requisites which a claim filed under it must have in order to create a lien on the building. The second of these is “ the amount or sum claimed to be due and the nature or kind of the work done or the kind and amount of materials furnished and the time when the materials were furnished or the work was done, as the case may be.” All of these are or ought to be within the peculiar knowledge of the claimant from his books or otherwise, and must be furnished by him when filing his claim. When dispute arises, they are essential to the owner of the building, the purchaser and lien creditor, to enable them to trace out the truth of the claim and guard against error or imposition. The right to obtain a lien is given by the Act of Assembly to all debts contracted for work done or materials furnished for or about the erection or construction of the building, and that whether the materials are actually used in it or not. Where, as is often the case, a contractor carries on several dispersed buildings, and work is done and materials furnished for them by the same mechanic or material-man, the enumeration in the claim of these items furnishes the best means of ascertaining how far the particular building in question is liable. In relation to the third class of requisites, the locality of the building, there is some latitude given; the Act allows “the size and number of the stories or such other matters of description as shall be sufficient to identify it,” and this was the ground of the decision in Ewing v. Barras, (4 Watts & Serg. 467). But no such latitude is permitted in the first and second classes. The items are positively required; and this imperative requisition of the law we are not at liberty to dispense with or impair by a strained construction. The claim filed in the present case is in this respect defective. There is no time stated in the claim or bill appended to it, at which the work was done or materials furnished, as the Act of Assembly requires. The date of the 1st April 1840 is obviously the date of the bill and nothing else; the claim does not purport to state that as the time when the work was done or materials furnished, and a forced interpretation of this kind to sustain a claim would establish a precedent that would defeat the object which the Legislature had in view in requiring the time to be stated. As a general rule, the requisites to constitute a record lien must be substantially complied with, especially where, as here, a purchaser is to be affected who paid the full consideration money for the house on receiving his deed, without notice. In Rehrer v. Zeigler, (3 Watts & Serg 258), the claim stated the month and day of the month when the materials were delivered, but omitted the year, and it was held defective. In Lehman v. Thomas, (5 Watts & Serg. 262), an allegation that the work was done within six months past was held not to be a com [187] pliance with the Act. These cases rule the present point, and we think the claim is for these reasons defective. Another question is, whether the plaintiff is such a person as is authorized to acquire a lien on the building by filing a claim. In the cases of Jones v. Shawhan, (4 Watts & Serg. 417), and Hoatz v. Patterson, (5 Ibid. 537), it was decided that a contractor who agrees with the owner to furnish all the materials and erect the building for a fixed price, is not such a mechanic or material-man as is entitled to acquire a lien by filing a claim against the building. He cannot stand in the double character of contractor and mechanic or material-man. The former deals directly with the owner and trusts his personal responsibility or may require security ; the latter need know nothing of the owner, but trusts to the security of the building in default of payment. It is said in the latter case, it makes no difference that the contractor furnished the materials in whole or in part from his own stores. It is not easy to perceive any difference in principle in the circumstance that the contract is not for the whole building, but for a particu: lar job or piece of work, as here, to put up the marble work of two houses, and furnish marble mantels. The relation of the parties is the same, and similar inconveniences and incongruities would ensue to those pointed out in the opinion delivered by Mr Justice Rogers in Jones v. Shawhan, if the same individual might stand in the double capacity of contractor and material-man. Judgment reversed.