Central City Brick Co. v. Norfolk & W.R. Co.

• Decision Date: 26 January 1898
• Citation: Central City Brick Co. v. Norfolk & W.R. Co., 44 W.Va. 286, 28 S.E. 926 (W. Va. 1898)
• Parties: CENTRAL CITY BRICK CO. v. NORFOLK & W. R. CO.
• Court: West Virginia Supreme Court

28 S.E. 926

44 W.Va. 286

CENTRAL CITY BRICK CO. v. NORFOLK & W. R. CO.

Supreme Court of Appeals of West Virginia.

January 26, 1898

Submitted September 16, 1897

Syllabus by the Court.

1. Where a party seeks to create a mechanic's lien for material furnished to a contractor, to be used in the construction of a house, he must comply substantially with the requirements of the statute, in order to create a lien on the property on which such house is erected.

2. When the party who claims to have furnished such material for the construction of a house proceeds by a bill in equity to enforce his lien against such property, and the owner of the property, in answer to the bill, denies that the lien has been properly obtained by pursuing the statutory requirements, denies that the material was furnished by the plaintiff, the allegations of the bill must be sustained by proof, in order to obtain a decree for the sale of the property.

3. It is not sufficient to file with such a bill the account filed with the clerk of the county court for the purpose of creating such lien, but the fact that the material was furnished to the contractor, to be used in the construction of the house, in pursuance of a contract with such contractor, must be alleged and proved before such lien will be enforced against the property; and especially is this the case when the contract is denied in the answer.

4. Where a cause is referred to a commissioner, and exceptions are filed to the commissioner's report, in pursuance of section 7 of chapter 8 of the Acts of 1895, the commissioner shall, with his report, return the evidence filed in the case, including all the evidence taken upon the execution of the reference and it will be presumed such commissioner performed his duty in this regard.

Appeal from circuit court, Wayne county.

Bill by the Central City Brick Company against the Norfolk & Western Railroad Company. From a decree in favor of plaintiff defendant appeals. Reversed.

Campbell Holt & Campbell, for appellant.

McComas & Frey, for appellee.

ENGLISH P.

This was a bill in chancery, filed in the circuit court of Wayne county by the Central City Brick Company, a corporation, against the Norfolk & Western Railroad Company, for the purpose of enforcing an alleged mechanic's lien against certain property of the defendant. The plaintiff, in its bill, says that both it and the defendant are corporations duly organized under the laws of West Virginia, and that the defendant is the owner of certain real estate in Wayne county, at Kenova,--being the same land conveyed to it by the West Virginia & Ironton Railroad Company by deed bearing date on the 30th day of September, 1890, giving the deed book in which said deed is recorded, being the same land conveyed to the West Virginia & Ironton Railroad Company by J. H. Dingee by deed bearing date on the 1st day of August, 1890, also giving the deed book in which said deed was recorded, and exhibiting certified copies of said deeds with its bill,--on which real estate, at the intersection of the railroad aforesaid, the defendants some time ago commenced the building of a brick depot, the contract for which was awarded by said defendant to one F. J. Amweg; that some time after the awarding of the said contract, and while the same was in full force and effect, the said F. J. Amweg entered into a con tract with the plaintiff for the furnishing of a part of the material necessary in the construction of said building, in pursuance of which last-named contract, plaintiff furnished to said Amweg 53,000 brick at the price of $5.75 per 1,000, to be used, and the same were used, by said Amweg, in the construction of said building; that within 35 days after furnishing to said Amweg the brick aforesaid, to wit, on the 29th day of July, 1893, plaintiff caused a notice of the fact that it had furnished said brick to said Amweg to be used in said building to be served upon said Norfolk & Western Railroad Company, the owner of said building, and further notifying said last-named company that it, the said Central City Brick Company, desired to file a mechanic's lien against the land and building above described, to secure the claim aforesaid, true copy of which notice, together with the sheriff's return thereon, showing the service thereof, was filed as a part of the plaintiff's bill; that afterwards, to wit, on August 3, 1893, it caused a mechanic's lien for the sum of $304.75 for the material furnished to the said Amweg, principal contractor, and used by him in the construction of said building, to be filed in the office of the county court of Wayne county, which is duly recorded in Deed Book ___, page ___, a certified copy of which was therewith filed as part of the bill. Plaintiff further said said account against said Amweg is part due and unpaid, and he is, as plaintiff is informed and charges, insolvent. Plaintiff therefore prayed that the real estate and building aforesaid might be subjected to the payment of its lien, and for general relief. On the 29th day of September, 1893, the Norfolk & Western Railroad Company, by its attorneys, demurred to plaintiff's bill of complaint, and claimed that the same was not sufficient, because it did not aver that an itemized account of the material furnished, duly verified, was filed with said defendant 35 days after such material was furnished; it does not appear that the material so furnished was provided for in the contract between said Amweg and defendant,--which demurrer was overruled by the court, and thereupon said defendant company tendered its answer to the plaintiff's bill, to which answer plaintiff objected. The objection was overruled, the answer filed, and the plaintiff replied generally thereto. The defendant, in its answer, admitted the ownership of the real estate in the bill mentioned. It also admitted that on the 1st day of September, 1892, it entered into a contract with F. J. Amweg for the construction of a passenger station of stone and brick on its real estate at Kenova, and that said Amweg, in pursuance of said contract, began the work, and partially constructed said station, but on June 3, 1893, made an assignment of said contract, together with the rights, powers, privileges, benefits, and emoluments in said contract contained, and all the subcontracts with mechanics and material men made towards the erection and completion of said building, to the German-American Title & Trust Company, of Philadelphia, which company, under said assignment, began operations in 1893 looking to completion of the said contract. On July 11th said Amweg made a general assignment for the benefit of his creditors, stopped work upon said station before its completion, and the same still stands in an unfinished state, to the great inconvenience and damage of respondent. Of said general assignment respondent received notice on July 12, 1893, through a newspaper published in the city of Philadelphia, but of the assignment of the passenger station contract respondent did not receive formal notice in writing until September 28, 1893, nor did respondent have any notice or knowledge whatever of the existence of said assignment of the Kenova passenger station contract until after it had received notice of the said general assignment for the benefit of creditors. Respondent neither admits nor denies the alleged contract between the plaintiff and said Amweg in regard to furnishing part of the material used in the construction of said station, but calls for strict proof of said contract. Respondent also claims that the plaintiff did not, in accordance with the provisions of the statute in such case made and provided, file with the respondent or its authorized agent an itemized account of the material furnished said Amweg, verified by affidavit within 35 days after the...