Andrew v. Bishop

• Decision Date: 03 May 1934
• Citation: 172 A. 752
• Parties: ANDREW v. BISHOP et al. SAME v. FRENCH et al.
• Court: Maine Supreme Court

172 A. 752

ANDREW

v. BISHOP et al.

SAME

v. FRENCH et al.

Supreme Judicial Court of Maine.

May 3, 1934.

Exceptions from Supreme Judicial Court, Cumberland County, in Equity.

Two separate suits by Laurence C. Andrew against George Bishop and another, and against W. C. French and others. The surety on the contractor's bond was permitted to intervene in the second suit. Decision in favor of the plaintiff in each case, and the defendants bring exceptions.

Exceptions overruled, and eases remanded for decrees in conformity with opinion.

Argued before PATTANGALL, C. J., and DUNN, BARNES, and THAXTER, JJ.

Clifford McGlauflin, of Portland, for plaintiff.

Charles E. Gurney, of Portland, for defendants.

BARNES, Justice.

These two cases, tried together, arise under the law establishing a materialman's lien.

W. C. French and J. S. French, hereinafter called French Bros., in 1931 entered into a contract with the town of Windham to build a high school building, and gave a bond for the full completion of the same.

Defendant George Bishop contracted with French Bros, to do the plastering, and furnish plastering material. He secured material and did the plastering.

Of the material that Bishop furnished, plaintiff claimed to have sold him, on open account, an amount worth $899.02. No part of this sum having been paid, plaintiff, with in the time allowed by statute (Rev. St. 1930, c. 105, § 31), perfected and filed a materialman's lien for that amount.

By his second bill plaintiff seeks to recover of the town for material furnished, on open account, to French Bros, and used in construction under the high school building contract.

French Bros, owed him, when their work ceased, for material furnished them and, as he alleged, used in the construction of the school building, and, as provided and required by statute (Rev. St. 1930, c. 105, § 29 et seq.), he perfected and filed his lien claim for the sum of $5,334.57.

Before the hearing, a decree pro confesso was duly entered against defendant George Bishop; a bonding company, surety on the French Bros, bond, was permitted to intervene as a party defendant, and a special master was appointed to take an account of the dealings and transactions between the parties to each suit and to report his findings.

All questions of law were reserved for decision by the sitting justice, and right of exception to the master's rulings and findings were reserved by each party.

The master heard the cases, found the claim of lien duly established, and that material used in construction of the building was furnished by plaintiff to Bishop, worth $880; that the account was in no part paid and overdue, with computations of interest.

He found that material used in the building was furnished by plaintiff to French Bros., worth $5,277.43, in no part paid for, with interest computations.

He found that early in November, 1931, defendant paid French Bros., on construction account, the sum of $6,746.62; that French Bros, maintained a commercial account with a Portland bank, in which this sum, with another of $1,000, was deposited on November 16th, and that on or about November 18th, plaintiff received by mail from French Bros, a check for $2,000, drawn against their account in said bank, with no direction as to application of the payment. He further found that on the day when plaintiff received the check of French Bros, they owed to plaintiff, on account for merchandise sold and delivered to them, a "prior indebtedness" of more than $2,000, and that plaintiff had applied the check of French Bros., as soon as received, to reduction of such prior indebtedness.

In his decrees the sitting justice found for the plaintiff in the case against Bishop in the principal sum of $880, to which were to be added costs of suit and interest. The defending inhabitants of the town of Windham raised the point that French Bros., the principal contractors, were not made parties defendant and were necessary parties to the maintenance of the bill. The point was overruled and exceptions preserved.

In the case against French Rros. the justice found for the plaintiff in the sum of $5,277.43, to which were to be added costs and interest.

The intervening bonding company and the defendant town made claim that the $2,000 paid to plaintiff on or about November 18th should have been applied upon the bill for material furnished on the order of French Bros, for the high school building work, so as to reduce the amount due under the lien claim by that sum, and to that extent to relieve the bonding company on its liability.

The justice overruled this contention and held that plaintiff had the right to appropriate the payment to the precedent and independent indebtedness from French Bros. to him.

To this ruling the bonding company and the town reserved exceptions.

Ruling on the exceptions in inverse order, we hold that in the case before us French Rros. could have required the payment to be applied to any indebtedness from them to plaintiff, and, since they admittedly gave no indication of their wish in the matter, it was the unquestioned right of plaintiff to apply the payment as he did. Wilson v. Russ, 20 Me. 421; Plummer v. Erskine, 58 Me. 59; Phillips v. Moses, 65 Me. 70; Rlake v. Sawyer, 83 Me. 129, 21 A. 834, 12 L, R. A. 712, 23 Am. St. Rep. 762.

Such being the ruling of our court, it is plain that if the action had been at law, the decision complained of would be sustained.

In equity it must stand, unless thereby irremediable wrong would result, a situation which cannot arise, because, in its answer, the defendant town admits possession of a greater sum than the amount involved here, "retained by reason of the failure of W. C and J. S. French to complete said building and deliver the same to said defendant, free of all liens."

Our conclusion in the case of plaintiff v. W. C. French, J. S. French, and inhabitants of the town of Windham is, therefore, that the exceptions be overruled.

In the case against Rishop and town of Windham, the contention of defendants is that, for nonjoinder of indispensable parties, French Rros., as defendants, judgment should be for the defendant town.

It is perhaps usual to raise this issue by demurrer or answer; but, if it is done as here, the point is saved. Morse v. Machias Water Power & Mill Co., 42 Me. 119, 129; Evans v. Chism, 18 Me. 220.

A lien for a materialman was unknown to the common law. It was given by statute, and, because such is its origin, every jurisdictional requirement must be met and all conditions precedent as prescribed by statute must be complied with, before the lienor can prevail.

It is, however, no longer true in this jurisdiction that the statute (Rev. St. 1930, c. 105, § 29) is to be construed strictly against the claimant.

As long ago as 1895, our court said: "In determining the proper interpretation of lien statutes at this time, courts need not feel hampered by the earlier decisions. These statutes were such an innovation upon the common law of real property that for some time the courts construed them most strictly. To this day there are no such statutes in England. In this country, however, they are now general and familiar, and their equity and beneficence are conceded even by landowners. Courts will now construe them liberally, to further their equity and efficacy, when it is clear that the lien has been honestly earned, and the lien claimant is within the statute." Shaw v. Young, 87 Me. 271, 32 A. 897, 898.

In the case at bar a materialman brought suit for the purchase price of materials sold to a subcontractor, and did not make the principal contractor a party. Is this nonjoinder a fatal omission, and does the materialman, because of such omission, lose his lien on the real estate improved under his contract?

On this phase of procedure under the lien statute there has been no decision in this court.

Other courts furnish a great variety in opinion, unavoidably so because each state statute has its own wording, and few are similar throughout.

Procedure in this state is outlined as follows: "The liens mentioned * * * may be preserved and enforced by bill in equity against the debtor and owner of the property affected, and all other parties interested therein, filed with the clerk of courts," etc. R. S. c. 105, § 33.

The debtor and the owner of the property must be made parties to the bill at some stage of the case, otherwise it will fail for lack of parties to give the court jurisdiction.

These must be joined, unless the owner waive his right to the assistance of the debtor, who in the simplest case is the contractor. So it is perhaps not surprising that in recital of conclusions of opinions on the general subject the reader finds a statement to the effect that the great weight of authority is that the principal or original contractor is a necessary party defendant to an action to perfect a materialman's lien and that it cannot be enforced without making him a party, unless the owner waives his right to have him joined.

But such discussion leads inevitably to a consideration of the purpose of the proceeding.

However true it may be that a very important purpose is the obtaining of the lien on the particular property, yet it must be borne in mind that the fixing of the debt for the materials is the very essential of the action, and that unless the debt exists and is enforceable, then the ultimate purposes concerning the existence of the lien and its subsequent enforcement can never arise. But when the debtor is a subcontractor, the rule as to joinder of parties may be different.

No doubt the original contractor is a proper party in any materialman's action, and under our statute any person interested in the property improved may be made a party.

But the precise question in this case is whether a materialman, who has sold to a subcontractor, must at his peril make the original contractor a party before he is entitled to judgment.

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