Apex Roofing Supply Co. v. Howell

• Decision Date: 11 February 1960
• Docket Number: No. A--720,A--720
• Citation: 59 N.J.Super. 462,158 A.2d 49
• Parties: APEX ROOFING SUPPLY COMPANY, a corporation of New Jersey, Plaintiff-Appellant, v. Benjamin HOWELL and Esther Howell, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 462

59 N.J.Super. 462

158 A.2d 49

APEX ROOFING SUPPLY COMPANY, a corporation of New Jersey Plaintiff-Appellant, v. Benjamin HOWELL and Esther Howell, Defendants-Respondents.

No. A--720.

Superior Court of New Jersey Appellate Division.

Argued Feb. 8, 1960.

Decided Feb. 11, 1960.

Louis Asarnow, Newark, for appellant.

Hymen B. Mintz, Newark, for respondents (Sol Herships, Newark, attorney).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff materialman instituted a mechanic's lien action in the county district court to recover a general judgment against Castle Construction Co., the building contractor, and a special judgment against the lands and building of defendant owners, Benjamin and Esther Howell. The trial court found that the written notice given the owners by plaintiff of its filing of notice of intention did not meet the requirement of N.J.S. 2A:44--71, as amended, N.J.S.A. Accordingly, judgment was entered in favor of the owners, but against the construction company because it had filed no answer and been defaulted. Plaintiff appeals from that part of the judgment in favor of the owners. The matter is before us on findings of fact and conclusions of law filed by the trial judge after learning that an appeal had been taken.

Benjamin Howell and Esther Howell, brother and sister, jointly owned the property where they made their home. They contracted in writing with Castle Construction Co. for certain repairs to their dwelling. The contract was never filed with the county clerk, as it could have been under the Mechanic's Lien Act, N.J.S. 2A:44--75, N.J.S.A. Plaintiff furnished Castle with materials for the job totalling $629.07, the amount in suit. These were delivered between May 5 and 20, 1958, the first and largest delivery, on May 5, amounting to $610.40.

Plaintiff claimed that prior to furnishing the materials it filed a mechanic's notice of intention in the office of the county clerk on May 5, 1958, and that on May 9 it notified the Howells of this filing by registered mail, addressed to their home. For some unexplained reason the letter was returned, marked 'unclaimed.' Plaintiff then put it in an ordinary envelope and re-mailed it. The letter read:

'May 9, 1958

'Registered Mail

'Return Receipt Requested

'Mr. & Mrs. Benjamin Howell

'872 So. 16th St.

'Newark, N.J.

'Dear Mr. & Mrs. Howell:

'Congratulations on your choice of Castle Construction Co. to apply Asbestos Siding to your home. As wholesale distributors of this material we know this valued customer will give you an excellent job.

'For your protection a Notice of Intention was filed.

'With best wishes, we remain

'Very truly yours,

'Apex Roofing Supply Co.

'Milton Krizer, Office Mgr.

'MK/hr'

The letter was received by Benjamin Howell. His testimony, summarized in the findings and conclusions of the trial judge, was: 'I read the letter and put it away, as I was not concerned with it. I felt good. I felt protected. I did not turn it over to my sister.' He said he did not know what 'Notice of Intention,' mentioned in the letter, was. He did, however, know what a lien against a house was. His sister Esther testified she had never seen any letter from plaintiff, or had notice of one. She, too, did not know what 'Notice of Intention' meant, but did know what a mechanic's lien was.

The trial judge stated the crucial question to be whether plaintiff gave appropriate and timely notice in writing to the owners of the filing of the notice of intention, pursuant to N.J.S. 2A:44--71, as amended, N.J.S.A. He found that the written notice was 'not only indefinite and misleading but * * * couched in wording so ambiguous that it lulled the said Howells into a false sense of security rather than alert and excite them with reference to the particular fact, information and intelligence which the aforesaid statute intended.' We agree.

N.J.S. 2A:44--71, as amended, N.J.S.A., reads, in part:

'Except as hereinafter in this section and in section 2A:44--75 of this Title provided, no one shall be entitled to a lien under the provisions of this article for any labor performed or materials furnished prior to the filing, in the office of the proper county clerk, of a mechanic's notice of intention to perform such labor or furnish such materials.

'Notice, in writing, of the filing of any such notice of intention shall be given within 5 days of such filing to the owner of the premises, of the land described therein, personally or by registered mail, to the last known address, and unless such notice to the said owner be so given, the filing of the said notice of intention shall have no force or effect.'

The second paragraph was added by L.1957, c. 232, § 1.

In attacking the judgment under appeal plaintiff argues that the statute prescribes no specific form of notice, so that as long as the notification informs the landowner that a notice of intention has been filed, any other language in the written notice may be considered harmless surplusage citing in support the language of the court which appears in Wilson v. Long Branch, 27 N.J. 360 (1958), bottom of page 383, 142 A.2d 837, 850. We do not consider that case apposite. It dealt with the Blighted Area Act, N.J.S.A. 40:55--21.1 et seq., and the public notice of hearing to determine whether an area is blighted that must be given under N.J.S.A. 40:55--21.4.

In the absence of express provision, the form and contents of a notice required by a statute must depend upon the wording of the statute construed in the light of its intent and purpose. Cf. Portage Shoe Mfg. Co. v. Reich, 53 N.J.Super. 600, 605, 148 A.2d 47 (App.Div.1959); and see 2 Merrill on Notice, § 754, p. 169 (1952). It has been pointed out that mechanics' and materialmen's liens in New Jersey are exclusively statutory in origin, and being in derogation of the common law, the provisions of the statute giving rise to the lien are to be strictly construed, while those relating to the enforcement of the lien created are to be liberally construed to effectuate the remedial statutory policy of rendering the lands and buildings collaterally liable for the payment of the price or value of work performed and materials furnished in the erection or repair of the buildings. Columbia Lumber & Millwork Co., Inc. v. De Stefano, 12 N.J. 117, 123 and 127, 95 A.2d 914 (1953); Heljon Management Corp. v. Di Leo, 55 N.J.Super. 306, 150 A.2d 684 (App.Div.1959). The statutory lien, being a cumulative remedy for the enforcement of the underlying debt, does not materialize until all the statutory requisites are met. Friedman v. Stein, 4 N.J. 34, 41, 71 A.2d 346 (1950). A claimant's status is that of a general creditor only until he has done all things necessary to give him the security of the statutory lien.

The purpose of the requirement of written notice to the landowner of the filing of a notice of intention is to inform him that his property may become liable for the labor provided or the materials used in improving it. If, in the face of a proper notice, he then pays his immediate contractor, he does so at peril of finding himself with a lien against his property which can only be lifted by paying the claim.

The 1957 amendment,...