Thomas v. Barber

Eccleston, J., delivered the opinion of this court. The scire facias in this case issued from the Superior Court of Baltimore city, for the purpose of enforcing a claim under the lien laws. The writ recites, that on the 10th of April 1855, William E. Barber and Samuel W. Barber filed a claim in the said court, “against Jacob F. Kridler and John H. Thomas, for the sum of $95.31, on a three-slory brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street in said city, with a depth of about fifty-three feet, and on the lot whereon said tenement is erected, and the ground adjacent thereto and used therewith, of which the said John H. Thomas was the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber, to the said Jacob F. Kridler, as contractor, builder and architect.” The writ was issued on the 11th of April 1855, and on the return-day the sheriff made the following return: “Copy served on John H. Thomas, defendant in possession, and summoned. Non est, Jacob F. Kridlerj also adver — 387 — tised according to law, as per advertisement hereto annexed. (Signed,) Samuel Hines, sheriff. ’ ’ The advertisement states the issuing of the writ, describing the property and the lien-claim as set forth in the scire facias, calling Thomas “the owner, or reputed owner;” and stating the lumber to have been sold to Kridlcr, as contractor, builder and architect.” It then gives notice to all claimants and persons interested to be and appear in the court, “to show cause, if any thing they know or have to say, why the said sum of money above named should not be levied of the said buildings to the use of the said William E. and Samuel W. Barber, according to the form of the act of Assembly in such case made and provided.” Thomas appeared and filed three pleas: 1st. That the materials were not furnished, and that the sum of money was not due and unpaid as alleged. 2nd. That the contract for furnishing the said materials was made with an architect, builder, or other person than the owner of the lot on which the building was erected, and that the plaintiffs did not, in manner and form as required by the acts of Assembly in such case made and provided, give notice of the same, and of their intention to claim the benefit of the alleged lien. 3rd. That no lawful sufficient claim of lien was filed as required by the acts of Assembly. Upon issues based on these pleas the cause was tried. The lien-claim, as filed, does not appear in the record, but, by agreement, is to be used as if it liad been inserted. It is as follows: “ William E. Barber and Samuel W. Barber, vs. Jacob F. Kridler and John H. Thomas. — Mechanics Lien. — In the Superior Court of Baltimore city. William E. Barber and Samuel W. Barber, of the city of Baltimore, Maryland, claim a lien for the sum of $95.31, on a three-story brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street, in said city, with a depth of about fifty-three feet, and — 388 — on the lot whereon said tenement is erected, and the ground adjacent thereto, and used therewith, of which the said John H. Thomas was, at the time of the delivery hereinafter mentioned, the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber to the said Jacob P. Kridler, as contractor, builder and architect, of the kind, at the prices, and delivered at the respective times stated in the account hereto annexed and filed herewith. McLean & Williams, Attorneys for Claimants, Mr. Jacob F. Kridler and John H. Thomas, Bot, of Barber Sr Brother, 1854. May 25.-625 ft. 8x5 w. pine, 20.2-1-, . $15 63 Hauling, ----- 37 |16 00 July 11. — 1080 ft. 3x9 hemlock, 16.If, - 18 90 Hauling,..... 50 19 40 <e 12. — 1080 ft. 3x9 hemlock, 16.If, - 18 90 Hauling, ----- 5Q 19 40 Aug- 15. — 208 ft. 3x4 w. pine, 26.2f, - 5 72 Sept. 12. — 254 ft. 4x4 callings, 2, - - - 5 08 960 ft. 3x4 hemlock, 16.If, - 16 80 Hauling, ----- 50 22 38 Nov. 17. — 159 ft. 4x4 panel, 4£, - - - 7 16 Oct. 25. — 1500 ft. laths, w. p. — Jacob cart, 37-1,-, 5 25 $>95 31 Received to be recorded 10th day of April 1855. Same day recprded and examined, Per, Edward Dowlinq, Clerk,” On the 5th of January 1855, the following notice was served upon the present appellant: “John JS, Thomas, Esq. — Sir, You are hereby notified, that wp intend to claim the benefit of the lien provided by acts of Assembly, for materials furnished, and work done for and about the erection and construction of a certain three-story building, situate on the westwardly side of McCulloh street, being the first house north-west from Hoffman street, in the — 389 — city of Baltimore, of which Jacob F. Kridlerwas the architect, contractor and builder, and you the owner, or reputed owner. Very respectfully yours, <fcc., Barber &• Bro., Lumber Merchants.” “Baltimore, Dec. 28, 1854.” Inasmuch as our decision is based upon the proceedings already mentioned, a further statement of the evidence contained in the bill of exceptions is deemed unnecessary. At the trial the defendant submitted four prayers, all of which, as presented, were refused; but the court granted the third, (marked 4th,) with a qualification. The verdict and judgment being in favor of the plaintiffs, the defendant appealed. The first prayer asks the court “to instruct the jury, that if they find that Kridler executed the contract given in evidence by the defendant, then the notice to the defendant, offered in evidence by the plaintiffs, is not sufficient to entitle the plaintiffs to the benefit of a lien against the defendant, as owner of the property in question, and that the plaintiffs are therefore not entitled to recover in this action.” For the purpose of giving effect to a claim, under the lien laws, if the contract for furnishing materials shall have been made with “any architect, builder or other person, except the owner or owners of the lot upon which the building may be erected, or his, her or their agent,” it is necessary that, within' sixty days after furnishing such materials, notice thereof, and of the intention to claim the lien, shall be given in writing, by the claimant, or his agent, “to the owner or owners, or agent, if residing in the city or county of Baltimore.” See the Acts of 1838, ch. 205, sec. 9; 1845, ch. 176, sec. 1, and 1845, ch. 287, sec. 8; also the case of Hess & others, vs. Poultney & Brown, Ante, 257. In prescribing the form of the claim to be filed, the 11th section of the first act directs, that it shall set forth “the name of the claimant, and of the owner, or reputed owner, of the building, and also of the contractor, architect or builder.” And in reference to a notice by publication, directed by the 17th section of the original act, the 9th section of 1845, ch, — 390 — 287, requires such notice to specify the name of the owner, or supposed owner, of the building, and of the contractor, if any, at whose instance the materials were furnished. The notice to Thomas — the lien claim as filed — the scire facias — and the sheriff’s published notice — all name Thomas as “owner, or reputed owner,” and Kridler as “contractor, builder and architect.” And the lien-claim not only thus describes those parties, but says, “the said John H. Thomas was, at the time of the delivery hereinafter mentioned, the owner, or reputed owner,” of the property designated as that on which the lien is claimed, “for lumber sold and delivered by the said William E. Barber and Samuel W. Barber to the said Jacob E. Kridler, as contractor, builder and architect, of the kind, at the prices, and delivered at the respective times stated in the account hereto annexed and filed herewith.” With such proceedings before us, so far as this case is concerned, we must regard Thomas as oioner, a&d Kridler as contractor, builder and architect. This being so the plaintiffs were not entitled to recover under this scire facias, unless notice was given to Thomas according to the requirements of the acts which have been referred to, and this we think has not been done. The claim was not filed until the 10th April 1855 j the notice was given on the 5th of January preceding, merely stating an intention “to claim the benefit of the lien provided by the acts of Assembly for materials furnished, and work done for and about the erection and construction of a certain three-story building,” <fec. It says nothing as to the nature or kind of materials furnished or work done, leaving the owner entirely without information in regard to the amount intended to be claimed. The act of 1845, ch. 176, sec. 1, requires in such a case as this that a claimant shall, within sixty days after furnishing work or materials, “give notice of the same, “(that is, notice of the furnishing of such work or materials,)” and of his intention to claim the lien.” In a case where the notice makes no reference to a claim filed, and could'make none in consequence of there being no such claim on file, how can such a notice as — 391 — the present be considered a compliance with the act? What useful information did it furnish in reference to the amount of the claim? The 8th section of chapter 287 of the same session, confirms us in the belief, that this notice is not such as the Legislature designed it should be. That section gives the owner who receives notice of a lien claimed for materials, the right to retain out of the cost of the building, as between himself and the contractor, athe amount which he may ascertain to be due to the party giving such notice.” This provision is an equitable one, and designed for the protection of the owner. Requiring such a notice to be given as will render the law practically useful to him, imposes no hardship upon a material man or mechanic, whilst it only secures to an owner what the Legislature evidently intended for his benefit. As the notice received by Thomas says nothing in regard to the amount claimed, it gave him no information in reference to what amount he would be entitled to retain out of the contractor’s claim. Like the case before us, the scire facias, in Hess & others, vs. Poultney & Brown, was issued upon a claim for materials. There the want of a proper notice to the owners was held to be a defect, which so effectually defeated the claim that the court did not award a procedendo. And considering the present notice defective, we think the first prayer of the defendant should have been granted. The judgment must therefore be reversed, and no procedendo ordered. This renders an examination of the other prayers unnecessary. Judgment reversed, without a procedendo.