Atlantic Terra Cotta Co. v. Moore Const. Co.
| Decision Date | 13 January 1914 |
| Parties | ATLANTIC TERRA COTTA CO. v. MOORE CONST. CO. ET AL. |
| Court | West Virginia Supreme Court |
Submitted December 17, 1913.
Rehearing Denied Feb. 12, 1914.
Syllabus by the Court.
Documents exhibited with a bill, vouching the truth of the allegations thereof, are controlling in case of discrepancy.
As a general rule there can be no lien for material furnished a contractor not used and incorporated into the building or structure covered by the contract.
Assuming that certain alleged exceptions to this general rule are established by the authorities cited, as where the owner refuses to permit the material to go into the building, or that labor was expended thereon at plaintiff's shop or factory on the faith of the contract, the facts here alleged do not present a case for their proper application.
The promise of the owner to pay to a subcontractor on account of the contract price on condition that material contracted for by such contractor is delivered will not bind the owner for material not delivered nor entering into the building or structure contracted for.
In this state, where the distinction between suits in equity and actions at law, as at common law, is still maintained, and a subcontractor fails in allegation or proof to establish a valid mechanic's lien, equity has no jurisdiction to retain his suit for the purpose of a personal decree in his favor against the owner or contractor for an alleged balance due him from the contractor.
Appeal from Circuit Court, Kanawha County.
Suit by the Atlantic Terra Cotta Company against the Moore Construction Company and others. From a decree for defendants, plaintiff appeals. Affirmed.
Price Smith, Spilman & Clay, of Charleston, for appellant.
Chilton MacCorkle & Chilton, of Charleston, for appellees.
The decree appealed from dismissed on demurrer plaintiff's original and amended bills, which sought foreclosure of its alleged mechanic's or material-man's lien for terra cotta furnished the Moore Construction Co., principal contractor, in the construction of an office building for and under a contract with Alderson and Stephenson, owners situated in the City of Charleston.
The alleged lien, a copy of which is exhibited with the original bill, and vouched for the truth of the allegations thereof purports a contract by plaintiff with the Moore Construction Co., principal contractor, not with the owners, and there is also exhibited with the bill a copy of said contract. The bill also alleges that said material was furnished in pursuance to such contract with said contractors, and whereby plaintiff contracted to provide all the material and perform all the work for the delivery of the terra cotta f. o. b. its plant in New York, with freight allowed to Charleston, West Virginia; and the Moore Construction Co. thereby agreed to make payment for said material monthly on or before the 20th of each and every month for the material shipped the preceding month to the amount of 85% of the value thereof, final payment to be made within thirty days after the final shipment of the material contracted for.
And after setting forth the alleged failure of the Moore Construction Co., to make payments in accordance with the contract, and the subsequent negotiations by plaintiff's president, preliminary to delivery of the final shipments of the material, for securing payment of the entire balance which would have become due on said contract, and an alleged agreement of the contractor, and of the owners to pay $5,000.00 on account thereof, and failure on their part in that behalf, said bill alleges compliance by plaintiff with the statute in filing with the owner within thirty five days from the time it ceased to furnish said material an itemized account thereof "including the two car loads of material which were never accepted by the said Moore Construction Company," verified by the affidavit of its president, together with the notice of same as required by statute, a copy of which purports to be exhibited with the bill. And it is also alleged that within sixty days after it ceased to furnish said material plaintiff filed with the clerk of the county court a duplicate copy of said account, affidavit and notice, which was recorded in Mechanic's Lien Record No. 1, at page 187, and a further allegation is that there is due plaintiff from the Moore Construction Company, for the material so furnished, including the two car loads not accepted by it, $5,995.19, and interest. And this allegation is followed by another that said Alderson and Stephenson are obliged to pay it the sum of $5,000.00, a part of the amount so demanded.
From a copy of the alleged lien exhibited with the bill it appears that the first item or shipment was on June 17, the last items, delivered, October 17, followed by three items, one of October 17, and two of October 19, all marked opposite, "not used," the year nowhere appearing therein, but the bill alleges the year 1910.
The affidavit of the president to the account was taken in New York, December 19, 1910, and the certificate of the clerk of the county court of New York, as to the official character of the officer taking the affidavit, is dated December 22, 1910, and the return thereon shows service of the account and notice on Alderson and Stephenson, on December 20, 1910, the affidavits thereto appearing to have been made before the officer December 27, 1910; the exact date of the filing in the clerk's office nowhere appearing. There is here apparent conflict, for if the account and notice were in New York, on December 22, 1910, the date of the clerk's certificate attached, it could not have been served on Alderson and Stephenson on December 20, 1910.
We have already decided that documents, exhibited with a bill, vouching the truth of the allegations thereof, are controlling in case of discrepancy. Houston Lumber Co. v. Railway Co., 69 W.Va. 683, 72 S.E. 786; Board of Education v. Berry, 62 W.Va. 433, 59 S.E. 169, 125 Am.St.Rep. 975; Richardson v. Ebert, 61 W.Va. 523, 56 S.E. 887; Loar v. Wilfong, 63 W.Va. 306, 61 S.E. 333; Phillips & Sons v. Roberts, 26 W.Va. 783; Lockhead v. Berkeley Springs W. & I. Co., 40 W.Va. 553, 556, 21 S.E. 1031. Observing this rule we would have to sustain the ruling of the court below on the demurrer to the original bill, for on the face of the account and notice, and treating October 19, as the date of the last delivery of material, and December 20, as the date of service on the owners, service was not had on them, nor delivery of the duplicate thereof to the county clerk, until more than sixty days after plaintiff ceased to furnish the material under the contract, wherefore the lien was invalid on its face and in fact. By the very terms of the statute, section 3, chapter 75, Code 1906, neglect or failure of the materialman to notify the owner within thirty five days after he has ceased to furnish material "shall release the owner from all responsibility, and his property from all lien for any item therein done or furnished prior to the said notice." Nor would such lien be good as upon a contract with the owner for said material under section 2, chapter 75, Code 1906, for by section 4 of said chapter, "Every lien provided for in the second and third sections shall be discharged unless the person desiring to avail himself thereof shall, within sixty days after he ceases to labor on, or furnish material or machinery for such building or other structure, file with the clerk * * * a just and true account of the amount due him, after allowing all credits," etc.
By the amended bill, however, plaintiff undertook by allegation to correct these alleged errors in dates, and it is insisted that these alleged errors in dates do not invalidate the lien, and that the correct dates can be shown in pleadings and proof. For this proposition the following authorities are cited and relied on. 27 Cyc. 201, and cited cases; Treusch v. Shryock, 55 Md. 330; Johnson v. Otto, 105 Iowa 605, 75 N.W. 492; St. Croix Lumber Co. v. Davis, 105 Iowa 27, 74 N.W. 756; Union Trust Co. v. Casserly, 127 Mich. 183, 86 N.W. 545; Coughlan v. Longini, 77 Minn. 514, 80 N.W. 695; Miller v. Condit, 52 Minn. 455, 55 N.W. 47; Althen v. Tarbox, 48 Minn. 18, 50 N.W. 1018, 31 Am.St.Rep. 616; Linne v. Stout, 41 Minn. 483, 43 N.W. 377; Baltis v. Friend, 90 Mo.App. 408; Brockmeier v. Dette, 58 Mo.App. 607; Slight v. Patton, 96 Cal. 384, 31 P. 248.
Accepting for the present the correctness of this proposition, let us see whether the amended bill presents a case for its proper application. The account and notice, filed with the owner was sworn to by the plaintiff's president; the bill is unsworn to. The amended bill alleges that the dates given in the account filed, except as to the last four car loads, are the dates of the shipments, not the dates of the delivery of the material in Charleston. By the terms of the contract the material was to be delivered f. o. b. cars at plaintiff's plant, with freight allowed to destination. Of the last four loads it is alleged that one was shipped October 15th, two October 17th, one October 19th, 1910; that these four loads were shipped not to the contractor but to plaintiff's own order at Charleston; that the load of October 15th was not in fact delivered to the Moore Construction Company until October 28th; and that one of the loads of October 17th was likewise not delivered to said company until October 28th; that the remaining load of October 17th, and the one of October 19th, were never accepted by the construction company, because, as this bill alleges, before the shipment of said four car loads of material, said company "had failed and refused to make the payments as...
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