Bounds v. Nuttle

• Decision Date: 11 February 1943
• Docket Number: 3.
• Citation: 30 A.2d 263,181 Md. 400
• Parties: BOUNDS et al. v. NUTTLE et al.
• Court: Maryland Court of Appeals

30 A.2d 263

181 Md. 400

BOUNDS et al. v. NUTTLE et al.

No. 3.

Court of Appeals of Maryland

February 11, 1943

Appeal from Circuit Court, Dorchester County; T. Sangston Insley Judge.

Suit by Elias W. Nuttle and others against Walton C. Bounds and others to enforce a mechanic's lien. From the decree, the defendants appeal.

Affirmed.

V Calvin Trice, of Cambridge, for appellants.

James A. McAllister, of Cambridge, and Wesley E. Thawley, of Denton, for appellees.

Before SLOAN, DELAPLAINE, COLLINS, MARBURY, GRASON, and MELVIN, JJ.

MARBURY Judge.

This bill of complaint was filed by the appellees to enforce a mechanic's lien for materials furnished by them in the construction of a house of which the appellants are the owners. Not only the appellees but the contractors were made defendants. The contractors had also filed a mechanic's lien against the same property for an amount in excess of the lien filed by the appellees but including the materials mentioned in appellees' lien. The contractors answered were represented by counsel at the hearing, and one of them testified for the appellees. They did not, however, attempt to prove their lien, although it was filed as an exhibit with the bill of complaint. The contractors asked, if the relief prayed by the complainants were granted, that the proceeds of sale of the property should be devoted to the payment of their claim as well as that of the complainants. The Court below decreed the sale of the property of appellants unless they paid the appellees the amount of their lien, and directed the trustees appointed to bring into Court the money arising from such sale, to be distributed under the direction of the Court. The Court did not specifically pass upon the validity vel non of the contractors' lien. This appeal is taken only by the owners.

The first question that arises is the ruling of the Court below overruling a demurrer to the bill of complaint. The record does not contain the demurrer, and the only suggestion that there was one is the heading of the paper filed by the appellants which is entitled 'Demurrer and Answer'. The paper itself, however, does not state that it is a demurrer, nor is it in accordance with Equity Rule 18 either as to form or substance. Nor does the record show that it was supported by an affidavit that it was not intended for delay. Under these circumstances, we cannot construe the answer to be a demurrer; we cannot find in the record any demurrer which we can consider; and we have nothing before us upon which we can determine what were the questions raised at the hearing, and upon which were based the ruling of the lower Court. We cannot, therefore, review this ruling.

The second question involves the notice given by the appellees to the appellants. Such notice is required to be given under Code, Article 63, Section 11, where the contract for furnishing the work and materials is made with any other person except the owner of the property, and where the owner or agent is resident within the city or county. Section 12 of Article 63 provides that if such notice cannot be given on account of absence or other causes, the claimant or his agent may, in the presence of a competent witness, place a notice on the front door or other part of the building. These Sections were construed in the case of Kenly v. Sisters of Charity, 63 Md. 306, and it was there said: 'Before the claimant can rely upon the notice attached to the building he must show affirmatively that there was no owner or agent in Baltimore County, or that there were other causes why the notice could not be served personally.' In the case before us, the owners of the property at the time of making the contract and at the time of placing the notice on the building, were residents of Princess Anne in Somerset County. The building was in Dorchester County. One of the appellees talked to the appellant, Walton C. Bounds, on the telephone on April 7th, 1941, when appellants were at East New Market, on their way to Princess Anne. In this conversation appellants were told appellees wanted to arrange a meeting, so they could serve a notice of this lien. The appellants were unable to wait. Thereupon, the appellees, through their agent, took the notice of the lien, and on the same day had it attached to the front door of the building in the presence of a witness. This was done within time and in accordance with the provisions of the statute, and the notice itself seems to be in proper form. Objection is made because the copy filed has the statement at the bottom by the appellees' agent that it was served upon the appellants and this statement is witnessed. That is a matter of nomenclature only. It might readily be held that the placing of the notice on the door was service under the statute, although not personal service. The appellants within a few days went to the property and found the notice there. We conclude that the notice, under the circumstances, was properly given.

The main contention of the appellants is that the appellees, by reason of the circumstances under which the contractors were employed, and by reason of their subsequent dealings with the contractors, are estopped from claiming any lien on the building. It appears from the record that the appellants had purchased the property and were desirous of building a residence on it. They had heard of the appellees and went to see them for the purpose of discussing a contract to build. The testimony is conflicting and somewhat confusing as to just what were the conversations. The evidence of the appellees is that they did not build houses, but only furnished materials, that they so informed the appellants, but recommended the contractors to them. This seems to have been substantially what happened, judging by the results. The appellants looked at some houses that the recommended contractors had built, accepted the appellees' recommendation, met the contractors with an agent of the appellees on the premises, had some discussion with the agent as to the form of the contract to be entered into, and finally signed the contract with the contractors, on the premises, in the presence of the agent of the appellees. This contract was with the contractors alone. The appellees were not only not parties to it, but it provided that the contractors should furnish and pay for all the labor, materials, etc., necessary to construct, complete and deliver to the appellants, free from any claims or liens, a building shown by the plans and specifications. The contract price was $7,380, payment to be made in monthly installments, on or before the 10th day of each month, amounting to ninety per centum of the labor and materials furnished during the preceding month, and final payment to be made within thirty days after the contract was fully performed.

After this contract was signed, the appellants were obligated to pay the contractors for the materials furnished, unless they were on notice that the contractors were not taking care of bills for which liens might subsequently be laid. All the previous negotiations were merged in this contract. It appears that it was suggested to the agent of the appellees at the time of the signing that the appellees had not signed, and he replied that that was not necessary. The appellants then accepted a contract with the contractors which obligated them to pay the contractors and the contractors alone. There is nothing in the record which indicated that any improper means were used by the appellees to induce the appellants to enter into this contract. On the contrary, it appears that there was considerable discussion about the contractors, the work they had done on other buildings, and the kind of contract that was to be signed. The appellants were not satisfied with the original draft, and required another draft to be prepared on a form they produced. It may be unfortunate that they did not have the advice of competent counsel, but their ignorance of law is no excuse. If their failure to protect themselves against an impecunious contractor causes them to have to pay twice for materials, it is their own fault. The mechanic's lien law was passed to cover just such a situation and to protect material men. The theory of it is that the owner gets the benefit of the materials, and he has control of the money. If he negligently and carelessly pays the money out to the contractor without taking precautions to see that it is applied to the payment of the materials which go in the building, then he must stand the loss rather than the material man, who has no opportunity to protect himself once he has delivered the materials.

There is another phase of the matter which presents a much more serious claim of estoppel, and if it were supported by facts it would operate against the appellees. In the answer of the appellants, they state that they have positive knowledge that the contractors have paid to the appellees money which the appellants had paid the contractors, that the appellees have applied this money to debts owed them by the contractors on other jobs, and that the contractors and the appellees 'have collusively arranged...