Blake v. Pitcher

• Decision Date: 04 May 1877
• Citation: 46 Md. 453
• Parties: HENRY BLAKE v. WILLIAM H. PITCHER and YOUNG O. WILSON, trading as PITCHER & WILSON.
• Court: Maryland Court of Appeals

46 Md. 453

HENRY BLAKE v. WILLIAM H. PITCHER and YOUNG O. WILSON, trading as PITCHER & WILSON.

Court of Appeals of Maryland

May 4, 1877

APPEAL from the Superior Court of Baltimore City.

First and Second Exceptions--stated in the opinion of the Court.

Third Exception.--The plaintiffs, to sustain the issues joined on their part, offered evidence tending to prove the hypothesis of fact set out in their prayer; and the defendants to maintain the issues joined on their part offered evidence tending to prove the hypothesis of fact set out in their prayers; and thereupon the plaintiffs offered the following prayer:

1. If the jury find that the plaintiff, Pitcher, on behalf of himself and the plaintiff Wilson, called upon and had a conversation with the defendant, Blake, in which conversation the plaintiff, Pitcher, proposed to said Blake, that said plaintiffs should sell to said Blake pressed bricks, for the fronts of houses in Eutaw Square, mentioned in the evidence and that said Blake answered said Pitcher, that he, said Blake, had made a trade of a house with one Samuel K. Harris for the bricks required for said houses, but that he, said Blake, did not know if said Harris made the particular sort of pressed bricks required for said fronts, and said Pitcher replied that said Harris did not make such pressed bricks and thereupon said Blake said to said Pitcher, " go and see Harris, and if he don't make those bricks, I should like to have you furnish them, and any arrangement Harris may make with you will be satisfactory to me."

And if the jury further find from the evidence that afterwards the said plaintiff, Pitcher, on behalf of himself and said plaintiff, Wilson, had a conversation with Samuel K. Harris, in which said plaintiff told said Harris what said Blake had said in reference to said bricks, and Harris answered said plaintiff, Pitcher, that he, said Harris, had not the bricks suitable for the fronts of Blake's buildings and would have to buy them, and would be willing to get them from the plaintiffs, and asked the price at which plaintiffs would sell said bricks, and the plaintiff, Pitcher, said at thirty-five dollars per thousand; and the plaintiff, Pitcher, on behalf of himself and said plaintiff, Wilson, thereupon agreed with said Harris to furnish said bricks to the said buildings Blake was about to build, and said Harris directed the plaintiffs to furnish said bricks on said Blake's orders therefor, and when they were ready for them at the buildings. And if the jury further find that the defendant, Blake, was the owner or reputed owner of the buildings and premises mentioned in the lien and scire facias amongst the proceedings, at the times of the furnishing of the materials by the plaintiffs as hereinafter mentioned, and shall further find that after the conversations of the plaintiff, Pitcher, with the defendant, Blake, and after the conversation of the plaintiff, Pitcher, with the said Samuel K. Harris as aforesaid, the plaintiffs furnished and delivered to the said buildings and premises the materials, viz., pressed bricks and long arch bricks, mentioned in the lien and evidence, at the instance of said Harris, and with the knowledge of the said Harris, and that said materials were by the said defendant, Blake, and with his, the said defendant's, Blake's, knowledge that the same were materials furnished and delivered by said plaintiffs, used in the erection of said buildings and premises, then their verdict may be for the plaintiff, provided the jury further find that notice in writing was given to said defendant, Blake, by said plaintiffs, within sixty days after the furnishing of such materials as aforesaid, of the intention of said plaintiffs to claim the benefit of a lien upon said buildings and premises.

And then the defendants offered the five following prayers:

1. The defendants pray the Court to instruct the jury, that if they are satisfied from the evidence that the defendant, Henry Blake, was the owner and builder of the houses on Eutaw Square, spoken of in these proceedings and referred to by the witnesses, and that as such owner and builder he bought the bricks required for and used in the construction of said houses of the defendant, Samuel K. Harris, and paid said Harris for the same; and shall further be satisfied from the evidence that said Samuel K. Harris was at the time a manufacturer of bricks, and sold and delivered said bricks to said Blake in the regular prosecution of his business as a manufacturer and seller of bricks, then the plaintiffs are not entitled to recover in this action, even although they should find that said Harris bought from them a part of the bricks which he so delivered to said Blake, and their verdict will be for the defendants.

2. If the jury find from the evidence that the defendant, Blake, was the owner of the houses mentioned in the lien claim filed in this cause, and also that he was the builder and only party contracting for the erection and construction of the same; then, unless they further find that the bricks mentioned in said lien claim were furnished by the plaintiffs in this cause in pursuance of a contract with said Blake, the plaintiffs are not entitled to recover, and their verdict must be for the defendants.

3. If the jury find from the evidence that the defendant, Harris, was not the architect, builder or contractor of the houses mentioned in the lien claim filed in this cause, but was a manufacturer and seller of bricks, and that the plaintiffs in their business of manufacturing and selling bricks, (if they find such to be the business of the plaintiffs,) sold to the said Harris the bricks mentioned in the said lien claim, then the plaintiff is not entitled to recover in this action, and their verdict must be for the defendant.

4. Unless the jury find from the evidence that the materials mentioned in the lien claim filed in this cause were purchased by a contractor or builder of the houses therein named, and that notice in writing of the plaintiffs' intention to claim a lien for the payment of said materials was given to the owner of said houses within sixty days after furnishing the same, the plaintiffs are not entitled to recover in this action, and their verdict must be for the defendants.

5. If the jury find from the evidence that the plaintiffs received from the defendant, Samuel K. Harris, his promissory note for a part of the purchase money of the bricks, then the plaintiffs are not entitled to recover in this action for such portion of their claim as was covered by such note, there being no evidence that said note has been lost, and the same not having been produced in Court to be cancelled.

And the Court, (DOBBIN, J.,) granted the plaintiffs' prayer and refused to grant the defendants' prayers. The defendants excepted.

The jury rendered a verdict for the plaintiffs, and judgment was entered accordingly. The defendant, Blake, appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT, GRASON and MILLER, J.

Henry Stockbridge, for the appellant.

By well settled Maryland law the plaintiffs, having received a promissory note for their debt, which they did not produce in Court, nor show to have been lost, were estopped from prosecuting their claim against the defendant. Glenn vs. Smith, 2 G. & J., 508; Myers vs. Smith and Barrick, 27 Md., 50.

But the principal,--the important--question presented by the pleadings and the prayers, is, has the producer of building materials, who sells them to another dealer in like materials, who is not a builder, or contractor, but who sells them in turn to a builder or contractor, a right to follow those materials with a lien to the remote user of them, and hold his property responsible for them, although he has, in good faith, paid for them to the person of whom he bought them?

The right of lien in our State, as applicable to cases like this, rests upon the first and eleventh sections of Art. 61. of 1st Code, 405, 406. If it is not there it can be found nowhere.

Section 1 gives a lien upon every building erected for the payment of all debts contracted for work done or materials furnished for or about the same.

Section 11 limits the operation of section 1, by providing that persons entitled to a lien under section 1 shall pursue a particular course, or shall ""not be entitled" to a lien for any materials furnished. It is a limitation, a restriction, (not an extension, an enlargement,) of the privilege granted by the first section. No person acquires a right of lien by virtue of the provisions of the eleventh section who has it not by virtue of the first section; and no person, of the class to which it refers, who are entitled to a right of lien by virtue of the first section, retains it unless he complies with the requirements of the eleventh section.

Under a proper construction of this statute, the producer of building materials, who sells them to a dealer in such materials, cannot follow them with a lien through the hands of a dealer, or chain of dealers, and charge the builder with the payment of the dealer's debt.

If this can be done, it is impossible for any person to build anything with safety. The builder may buy his material of the merchant, and pay for it in good faith, and after this is done, find his house bound for the payment of the merchant's debt, to the manufacturer of hardware in Connecticut, or England, or to the producer of lumber in Pennsylvania, or Maine.

A construction of a statute that involves such an absurdity and injustice, will not be adopted by the court, if it can reasonably be avoided. In this case the statute, not only does not require such a construction, but does require a different construction. Its phraseology clearly...