Clement v. Adams Bros.-Paynes Co.

Harrison, J., delivered the opinion of the court. The bill in this case was filed by the appellee corporation for the purpose of asserting and enforcing an alleged mechanic’s, lien against certain real estate of the appellant. A demurrer to. the bill by the appellant was overruled, and, upon the final hearing, a decree was entered in favor of a receiver appointed by the court for $367.39, the balance due from the appellant, and provision made for the sale of her property to satisfy the same. From the decree overruling the demurrer and the final decree, this appeal was allowed. The first assignment of error is to the action of the circuit court in overruling the demurrer to the bill. The ground of demurrer was that the alleged mechanic’s lien was not supported by proper affidavit, and was, therefore, void and of no effect; that in support of an account constituting the basis for a mechanic’s, lien the statute requires the same to be verified by the affidavit of the “claimant or his agent,” whereas, in this case, the affidavit was made by C. S. Adams, the president of the plaintiff corporation, and contains no averment of any agency on the part of the affiant, and that it cannot be implied that the president of the appellee corporation was, by virtue of his office, its agent to make the required affidavit. Section 2475 of the Code provides that all lumber dealers and other persons furnishing materials for the construction of any building shall have a lien, “if perfected as hereinafter provided,.”' upon such building or structure. Sections 2476 and 2477 provide that, among other steps necessary to perfect such hen, an account shall be filed by the general or sub-contractor, as the case may be, showing the amount and character of the materials furnished, the prices charged therefor, — 549 — the payments made, if any, and the balance due, verified by the oath of the “claimant or his agent.” Adams Bros.-Paynes Company is a corporation, and the language of the affidavit attached to the account which constitutes the. basis of the proceeding is that “C. S. Adams, the president of Adams Bros.-Paynes Co., a corporation, this day personally appeared before me in my said city, and, being by me first duly sworn, made oath to the correctness of the foregoing account.” The contention of the appellee, that the president of a corporation is necessarily its agent for the purpose of making the affidavit required in this case, cannot be sustained. The general doctrine is well settled that the powers of a private corporation, so far as its dealings with third persons are concerned, are primarily lodged in its board of directors, from which source the officers, either expressly or by implication, derive such measure of authority-as may be bestowed upon them. With respect to the powers of the president of a corporation it is said: “The office itself, however, confers no power to bind the corporation or control its property. The president’s power as an agent must be sought in the organic law of the corporation, in a delegation of authority from it, directly or through its board of directors, formally expressed or implied from a habit or custom of doing business.” 10 Cyc. 903, 2 Cook on Corp. (5th ed.) sec. 716; Morawetz on Private Corp., sec. 537. See, also, Crump v. U. S. Mining Co., 7 Gratt. (48 Va.) 352, 56 Am. Dec. 116; Hodges v. Bank, 22 Gratt. (63 Va.) 60. “The implied powers of the president of a corporation depend upon the nature of the company’s business and the measure of authority delegated to him by the board of directors. It seems that a president has no greater power, by virtue of his office merely, than any other director of the company, except that he is the presiding officer at the meeting of the board. The Supreme Court of New Jersey said, ‘In the absence of anything in the acts of incorporation bestowing special power upon the president, he has, from his mere official station, no more control over the corporate property and funds than any other director. The affairs of corporate bodies are within the exclusive control of their board of directors, from whom authority to dispose of their estates must be derived.’ ” 1 Morawetz on Private Corp., sec. 537. — 550 — In the case of Lancaster v. Barton, 102 Va. 615, 24 S. E. 251, where the question was as to the sufficiency of an affidavit to a bill which had to be verified by the oath of the plaintiff, and it appeared of record that the party objecting had shown by his own witness that the bill was signed and sworn to by each of the plaintiffs in his proper person, it was held to be sufficient, the court saying, however, that “the better practice was for the certificate to show on its face that the bill was sworn to by the plaintiff, and not leave that fact to be supplied by evidence aliunde.” Since that decision this court has repeatedly held that if the affiant bore the relation of agent to the plaintiff, the fact must be averred in the affidavit. In the case of Merriman v. Thomas, 103 Va. 24, 48 S. E. 490, in construing section 3286 of the Code, which provides that if in an action of assumpsit the account sued on is verified by an affidavit made by “the plaintiff or his agent,” no plea in bar shall be received unless accompanied by a like counter affidavit, this court held that the word “book-keeper” did not import agency, and that the affidavit of the plaintiff’s book-keeper, without more, was not a compliance with the statute. The court says: “The statute makes an innovation upon the established mode of procedure in such cases, and the plaintiff, in order to take advantage of it, must proceed in accordance with its provisions. The affidavit can only be made by the plaintiff, or his agent.” The court also, in that case, quoted with approval 2 Cyclopedia of Law and Procedure, page 5, where it is said, concerning affidavits and who may make them: “In determining this question reference must always be had to the statutes and the rules of court governing the particular affidavit. Thus, where a statute specifically points out who may make a certain affidavit, it can be made by no other than those specified.” The court adds, “If the statute had prescribed that the affidavit should be made by the plaintiff in person, then it could have been made by no one else, and when it is declared that it must be made by the plaintiff or his agent, the courts must be content to construe the language employed.” * * * “While a book-keeper may be, and often is, the agent of his employer, the word does not, ex vi termini, import that relation, and, in the absence of averment in the — 551 — affidavit that it exists, the courts cannot by intendment enlarge the ordinary signification of the word so as to bring it within a class to which it may or may not belong.” In the case of Taylor v. Sutherlin-Meade Co., 107 Va. 787, 60 S. E. 132, this court held that it could not say, as a matter of law, and in the absence of averment, that the term “secretary and treasurer” necessarily imported the relation of agency between such officer and his corporation, within the intendment of the attachment laws of this State, which require the affidavit to be made by the “plaintiff, his agent, or attorney”; that if he was in fact such agent it should have been averred in the affidavit. Upon petition for rehearing in that case we were asked to remand the case to the lower court for the purpose of enabling the appellants to prove the agency of the “secretary and treasurer.” This was denied, upon the ground that jurisdiction of attachments in equity was acquired alone by force of the affidavit; and that on appeal in a case founded on an insufficient affidavit this court could only abate the attachment and dismiss the proceeding, in the absence of application to amend the affidavit in the trial court. In the more recent case of Damron & Kelly v. Bank, 112 Va. 54,72 S. E. 153, the same conclusion was reached with respect to affidavits made in support of attachment proceedings, in the one case by the vice-president of a corporation, and in the other by a director of the same corporation; the court holding that neither the vice-president nor the director of a bank was such an agent of the corporation, in contemplation of the attachment laws, as to authorize either of them, by virtue of his office, without other authority, to make the required affidavit; and further holding that correct practice required the affidavit to aver that the affiant was the “plaintiff, his agent, or attorney,” if such was the fact, and that compliance with the rule imposed no undue hardship, as a corporation could appoint as many agents as it pleased with specific authority to make such affidavits. The appellee contends that affidavits in attachment proceedings might be held defective, whereas a different rule would obtain as to mechanics’ liens, when a more liberal construction is to be applied. There is no difference in the rule of construction — 552 — in the two cases when that portion of the mechanic’s lien statute which prescribes the method of perfecting the lien is being construed. The remedial portion of the statute, which provides for enforcing the lien after it is perfected, is to be liberally construed, but that portion dealing with the right to the existence of the lien is to be strictly construed. This distinction as to construction is laid down in 20 A. & E. Ency. of Law (2d ed.), p. 278, where, after reviewing the authority on the question of the method of construction of mechanics’ lien statute, the conclusion is reached, under the heading of “The Safe Rule,” that “The nearest approach to a general rule which can be safely laid down would seem to be that the remedial portion of mechanic’s lien statutes should be liberally construed; but that the other parts, those upon which the right to the existence of a lien depends, being in derogation of the common law, should be strictly construed.” This rule of construction has been clearly recognized by this court in the case of Bristol Iron, &c. Co. v. Thomas, 93 Va. 396, 25 S. E. 110, where it is said, at pages 400 and 401: “The statute upon this subject is remedial in its nature, and, while courts require a strict compliance with all the statute prescribes for the completion or perfection of the lien, and cannot, by construction, supply any failure or omission on the part of the claimant, and, to this extent, may be said to place a strict construction upon the statute, as being an innovation upon the common law, yet when the mechanic has done all that it is necessary for him to do, has performed the work or supplied the material, and perfected his lien therefor in the prescribed mode, the duty of the court is to see that those whom the law intended to protect shall enjoy the advantages which it confers.” In Trustees v. Davis, 85 Va. 193, 7 S. E. 245, in speaking of the provisions for perfecting mechanics’ liens, it is said: “These' provisions of the statute are indispensable to the creation of the lien, and hence, if one of them be not complied with, no lien is acquired.” And in Shackelford v. Beck, 80 Va. 573, 577, referring to those portions of the mechanic’s lien statutes, the court says the statute has “prescribed in express, plain, and unmistakable language — 553 — the way, and the only way, in which the purpose it had in view ■can be effected; * * * it is purely a creation of the statute, and it must be availed of, if at all, upon the terms and conditions which the statute prescribes.” And on page 579 it is said, “As the law calls for nothing unreasonable at the hand of him who would fasten an incumbrance upon the property of his neighbor, no just ground of complaint is afforded by insisting upon a rigid adherence to its provisions.” The appellee relies upon section 2478 of the Code as showing that the legislature intended á very liberal construction, and, therefore, that the affidavit, though not in strict compliance with the statute, would be good. That section provides that “No inaccuracy in the account filed, or in the description of the property to be covered by the lien, shall invalidate the lien,” &c. The legislature having designated but two defects that could be disregarded, it would seem that, under the doctrine of inclusio unius, exclusio alterius, it intended that defects not mentioned were to be regarded. In conclusion, and in the light of the authorities cited, we are of opinion that the verification of the account by the affidavit ■of the “claimant or his agent” is one of the essential requirements of the statute in perfecting a mechanic’s lien; that the president is not, by virtue of his office, the agent of his corporation to make such an affidavit; and that unless the affidavit, when made by the president, avers that he is in fact the agent of the corporation for that purpose, the lien is not perfected, and, therefore, does not exist. There being no lien, a court of equity is without jurisdiction to afford relief, and the bill must be dismissed. For these reasons the decrees complained of must be reversed, the demurrer sustained, and the bill dismissed with costs.