Bader Co. v. Concord Elec. Co., 5814

• Decision Date: 30 July 1969
• Docket Number: No. 5814,5814
• Citation: 256 A.2d 145,109 N.H. 487
• Parties: BADER COMPANY, Inc. v. CONCORD ELECTRIC COMPANY et al.
• Court: New Hampshire Supreme Court

Page 145

256 A.2d 145

109 N.H. 487

BADER COMPANY, Inc. v. CONCORD ELECTRIC COMPANY et al.

No. 5814.

Supreme Court of New Hampshire.

Argued Nov. 6, 1968.

Decided July 30, 1969.

Orr & Reno and Charles F. Leahy, Concord, for the plaintiff.

Frederick T. Greenhalge, Concord, for C. T. Gallagher, Trustee in Bankruptcy of A. Taylor Corporation, intervenor.

Sulloway, Hollis, Godfrey & Soden, Concord, for Concord Electric Co., furnished no brief.

LAMPRON, Justice.

Action by Bader Company, Inc., a subcontractor, to enforce a lien under RSA Ch. 447 for labor and materials furnished under a contract with A. Taylor Corporation, now bankrupt, the principal contractor performing work on the premises of the defendant, Concord Electric Company. Bader, and other subcontractors not involved in this appeal, brought writs specially attaching the real estate of Concord Electric in order to secure their liens for labor performed and materials furnished on its premises under contracts with Taylor. RSA 447:5, 6, 10. The parties agreed that Concord Electric had retainages of $11,036.94 and $1,235.37 which it paid in Court 'for the Court to accept the funds in lieu of the attachments and to discharge the attachments.'

Trial before the Court (Bownes, J.) resulted in a verdict for the defendant Concord Electric in the action brought by Bader. Its exceptions to the Trial Court's ruling permittin the trustee in bankruptcy of Taylor to intervene as a party defendant, to the admission of evidence, to certain findings and rulings and to the verdict were reserved and transferred.

Bader had two subcontracts with Taylor, each dated June 30, 1965, one providing for the installation of an integrated ceiling system at the office of Concord Electric, the other for glazed partitions. Bader made an attachment on June 3, 1966 to enforce a mechanic's lien against the property of Corcord Electric. The Trial Court found in part as follows: 'The plaintiff completed the work under its contract(s) not later than February 11, 1966. There was some testimony relative to work done on March 7th. The Court finds that this was inconsequential and not done pursuant to the contract but done at the request of the owner to correct defects.'

A letter from the architect in charge written to A. Taylor Corporation confirmed that it, the owner, and himself had agreed that December 21, 1965 was the date of substantial completion of the project. The agent of Concord Electric in charge of the work testified that Bader completed its work under these contracts in January 1966, except fr changes in the light installation to conform with the plans, which could have been done in March. By letter dated February 11, 1966, Bader notified Concord Electric that it had not been paid for its services and materials installed on its premises under subcontracts with Taylor and that it was claiming a lien 'upon the premises wherein such services and materials were performed and installed.' The Trial Court properly pointed out on its findings that this notice 'refers to materials furnished and services provided. The whole letter is phrased in terms of the work having been done.'

There was evidence that Bader performed some work on the Concord Electric premises around March 7, 1966 and maybe as late as March 15. This work consisted mainly in changing certain panels in the ceiling tiles which, as previously installed, did not provide access for servicing required by the plans and specifications. There was also testimony that Bader at that time repaired and adjusted lenses in the lights previously installed, and put in a ceiling in a reception area, which it had neglected to install. There were no time sheets produced by Bader for work on Concord Electric premises between January and March 1966 except for one of the weeks which ended March 9, 1966 showing wages of $15.38 for 4 hours of work. There was testimony that work performed in the January-March period was probably in the evening and charged by the workmen to another job in the Concord area where they had worked during the day. On March 23, 1966 Bader presented an invoice to Concord Electric showing a balance of $8600 due it under its contracts.

We cannot say as a matter of law that the Trial Court could not properly find and rule that the work done in March by Bader on Concord Electric's premises 'was inconsequential and not done pursuant to the contract but done at the reguest of the owner to correct defects.' Work of that nature could be found not to be such as to extend the duration of plaintiff's lien. Tolles-Bickford Lumber Co. v. Tilton School, 98 N.H. 55, 58, 94 A.2d 374; 36 Am.Jur., Mechanics' Liens, s. 142. Consequently the Trial Court could properly find and rule that Bader did not have a valid mechanic's lien because the writ brought on June 3, 1966 to secure by attachment its lien labor and materials was not 'within ninety days after the services are performed, or the materials furnished' under its contract which the Trial Court found was completed not later that February 11, 1966. RSA 447:9, 10. Rodd v. Titus Construction Co., 107 N.H. 264, 266, 220 A.2d 768; Tolles-Bickford Lumber Co. v. Tilton School, supra.

In the absence of the rights granted by RSA Ch. 447, Bader had no right to be paid by Concord Electric for services rendered and materials installed on its property under its subcontract with Taylor. Board of Education of School Dist. No. 108, etc. v. Collom, 77 Ill.App.2d 479, 483, 222 N.E.2d 804; 36 Am.Jur., Mechanics' Liens, s. 284. See...