Bailey Lumber Co v. Gen. Const. Co
| Decision Date | 04 May 1926 |
| Docket Number | (No. 5439.) |
| Citation | 133 S.E. 135 |
| Parties | BAILEY LUMBER CO. v. GENERAL CONST. CO. et al. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Appeal from Circuit Court, Wyoming County.
Suit by the Bailey Lumber Company against the General Construction Company and others to enforce a materialman's lien. Judgment for the plaintiff, rendering a personal decree against defendant Covel Smokeless Coal Company, and the last-named defendant appeals. Reversed and remanded.
McGinnis & McGinnis, of Beckley, and Price, Smith & Spilman, of Charleston, for appellant.
George Richardson, Jr., and Sanders, Crockett, Fox & Sanders, all of Bluefleld, for appellee.
The decree complained of enforces a materialman's lien in favor of the lumber company (plaintiff below) against the coal company (defendant below, appellant here) by rendering a personal decree against the coal company and ordering a sale of its property unless sooner paid.
The issue involved is the validity of the lien. Defects in the notice of lien and its recordation are claimed by the coal company, which invalidate the lien; and the coal company further claims it and its property were released from responsibility and lien because it required by notice in writing the lumber company to file with it (the owner) an itemized list of the materials furnished the contractor, the dates, prices charged, and nature of the materials furnished, as provided in section 6, chap. 75, Code 1923, which requirement was ignored by the lumber company. Another defense is that not all of the materials furnished by the lumber company-and listed in its notice of lien were in fact used on the coal company's property, but were used by the contractor in construction elsewhere, value of which materials used elsewhere is in the approximate sum of $4,000 or $5,000.
It appears that the coal company, having a coal lease on 79.29 acres, desired to build houses thereon for mining purposes, and on May 1, 1923, contracted in writing with the General Construction Company, a corporation, to build the houses. The contractor began the work and continued in the erection of the houses until about December 1, 1923, when it ceased work, leaving it unfinished, and the coal company completed the work after that date and paid the contractor all that was due him. The contractor purchased materials from the lumber company, alleged by the latter to amount to $51,425.33, on which it had paid $27,007.04, leaving a balance which with interest amounted to $25,009.21, for which it claims its lien, notice of which was served on the coal company, and on Gulf Smokeless Coal Company, December 18, 1923, and filed for record with the clerk of the county court of Wyoming county on December 14, 1923. About the middle of September, the coal company, through W. P. Tarns, Jr., its president, inquired of the lumber company by letter to Bluefleld, where it conducted its business, how the construction company was paying its bills, to which the lumber company promptly replied that it was paying its bills after a slight delay and that they thought there was nothing to fear, and acknowledged the interest of the coal company in the matter, as it (the coal company) would be liable for mechanic's lien. On September 22, 1923, Tarns, as president, wrote a letter to the lumber company asking for itemized statement of materials furnished General Construction Company for work at Covel (where the houses were being constructed), the dates, prices, and nature of the materials. This letter was sent to Beckley by mistake and was returned to the writer. In the meantime Tams had gone to Baltimore, and some one in his office wrote a similar letter dated October 15, 1923, which he forwarded to Tams at Baltimore who received, signed, and returned by mail to the office at Tams, thence it was mailed to the lumber company, and in due course of mail should have been received by it about October 23d. That letter reads:
No reply was.made. About December 3d following, Cheney, the general manager of the lumber company, acknowledged to Mc-Whorter, superintendent of the coal company, and to Rupe, an employee, that he had received the letter about 30 days before that time, and had delayed reply until he could check up credits with the construction company's manager. There can be little doubt that the lumber company received the letter in due course of mail. It was in their files and was not produced on the trial, because it had been lost or misplaced.
The coal company says the failure ofthe lumber company to comply with the request in the letter mentioned above releases it from all responsibility and its property from all lien or charge for materials furnished the contractor, under section 6, chap. 75, Code, which says:
"The said owner may, at any time, by notice in writing', require * * * such materialman * * * to tile with said owner an itemized account of the * * * materials * * * furnished by said materialman * * * to show the dates upon which * * * said materials were furnished, the price charged therefor and the nature of such * * * materials, and the neglect or failure * * * so to file the said itemized statement with the said owner, within ten days after the receipt by him of the said written notice so to do, shall release the said owner from all responsibility and his property from all lien or charge * * * for all materials furnished by the person so failing to file such required itemized statement, prior to the giving of said notice."
On the other hand, the lumber company says this letter is not the notice contemplated by the statute, was not served on it, but sent to it through the mails, and is not sufficient on its face to show that Covel Smokeless Coal Company, the owner of the property, required such itemized statement. It is argued that the notice should be served by an officer to be effective; that such was the intention of the statute.
The statute does not state how the notice shall be given. It does not say that it shall be served. It simply says that the owner by notice in writing may require the itemized statement from the materialman, and provides that if he fails or neglects to file such statement within 10 days after the receipt of the notice (not after it has been served), the owner is released from any lien for material furnished the contractor prior to the giving (not serving) of such notice. Where the statute is silent as to the manner or method of giving notice, it is generally sufficient if actual notice has been received by the person affected. Brost v. Whitall-Tatum Co., 89 N. J. Law, 531, 99 A. 315, L. R. A. 1917D, 71. Our statute says that if a notice is to be given no particular mode of serving being prescribed, it may be served by delivering a copy thereof to the party in person. Section 1, chap. 121, Code. We do not think it could be successfully contended that the lumber company would have been relieved from furnishing the statement if some credible person had handed this letter to its manager, Cheney, and had made oath to that fact. It would have been more solemn and impressive if an officer high in authority had done so, but the substance of the paper would not have been affected. The materialman in perfecting his lien is required by the statute to give to the owner the notice of his lien by any of the methods provided by law for the service of legal notices or summons. Section 3, par. e, chap. 75, Code. But the statute does not require in terms such particularity of giving the notice under consideration. It does not contemplate such particularity where the owner calls upon the materialman to give him data by which he can protect himself in settling with the contractor. One business man calls upon another to furnish him information which that other is required to furnish within a certain time, and the purpose of which he knows, and the statute does not contemplate the employment of counsel for the preparation of a formal paper with service by an officer. No form of such notice is prescribed.
In Blanchard v. Ely, 179 Mass. 586, 61 N. E. 218, the statute for the enforcement of the lien required the lienor to demand in writing payment, said writing to be "delivered to the debtor or left at his usual place of abode, if within this commonwealth, or made by letter addressed to him at his usual place of abodfe without the commonwealth and deposited in the post office to be sent to him." Pub. St. Mass. 1882, c. 192, § 24. The defendant lived in the commonwealth, at Springfield. The lien which plaintiff claimed and sought to enforce was for keeping certain horses. The demand required by the statute was made by letter and received by him next morning. The lien debtor made defense that there was no demand, as required by the statute, that the demand should have been made by formal service like that of a writ in a court action (an argument advanced in the case at bar). The court said that the statute made no such requirement and that delivery by the postal authorities was as good as if made by another person to whom it might have been entrusted, and that where no particular method of delivery is required, it is sufficient to prove that demand or notice was in fact conveyed to the person to be affected thereby, citing Wilson v. Trenton, 53 N. J. Law, 645, 23 A. 278, 16 L. R. A. 200; ...
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