Coleman v. Pearman

• Decision Date: 22 September 1932
• Citation: 159 Va. 72
• Court: Virginia Supreme Court
• Parties: H. L. COLEMAN, STONE TILE AND SUPPLY COMPANY, INC., ADAMS, PAYNE & GLEAVES, INC., AND J. W. HODGES, TRADING AS JOSEPH W. HODGES AND SONS v. W. J. PEARMAN, R. A. COVINGTON AND L. C. PRIDDY.

Page 72

159 Va. 72

H. L. COLEMAN, STONE TILE AND SUPPLY COMPANY, INC., ADAMS, PAYNE & GLEAVES, INC., AND J. W. HODGES, TRADING AS JOSEPH W. HODGES AND SONS v. W. J. PEARMAN, R. A. COVINGTON AND L. C. PRIDDY.

Supreme Court of Virginia, Staunton.

September 22, 1932.

Present, Holt, Epes, Hudgins, Browning and Chinn, JJ.

1. MECHANICS' LIENS — Perfecting Lien — General Contractors — Subcontractors — Notice in Writing to Property Owner of Amount and Character of Claim. — A general contractor may perfect his lien without giving notice to the owner, the filing of the required memorandum for recordation in the clerk's office being sufficient, but Code of 1930, section 6428, expressly requires that a subcontractor comply with the provisions of Code of 1930, section 6427, i.e., file certain memoranda required for the perfection of a general contractor's lien, and in addition, give notice in writing to the owner of the property, or his agent, of the amount and character of his claim.

2. MECHANICS' LIENS — Subcontractors — Perfecting Lien — Substantial Compliance with Requirements of Statutes. — There is no privity of contract between a subcontractor and the owner. A party whose labor or material is used in the erection of a building, without the consent of either the general contractor or the owner, is given a right by the mechanic's lien statutes in the sums to become due under the building contract, but in order to perfect that right it is essential that such party substantially comply with all the requirements of the statutes.

3. MECHANICS' LIENS — Subcontractors — Laborers and Materialmen — Protection Afforded by the Statute. — Laborers and materialmen are favored by the mechanic's lien laws which deal fairly with both the owner and the subcontractor, requiring the owner, after notice, to withhold from the general contractor enough to pay the subcontractor, provided the owner is indebted to the general contractor at the time notice is given, or may thereafter become indebted to him by virtue of the contract.

4. MECHANICS' LIENS — Subcontractors — Laborers and Materialmen — Protection Afforded by the Statute — Compliance with Terms of Statute. — The terms of the statute must be met before its benefits can be enjoyed. In other words, the owner is under no obligation to protect the interest of the subcontractor, except where the latter has complied with the law, and thus placed himself in a position to demand protection from the owner.

5. MECHANICS' LIENS — Liberal or Strict Construction — Creation of Lien — Enforcement of Lien. — There must be a substantial compliance with the requirement of that portion of the statute which relates to the creation of the lien; but the provisions with respect to its enforcement should be liberally construed.

6. MECHANICS' LIENS — Subcontractors — Means by Which Laborers and Materialmen May Protect Themselves — Notice to Owner of Amount and Character of Claim. — Laborers and materialmen unwilling to extend credit to a general contractor may obtain additional security: (1) By taking the steps prescribed by section 6429a of the Code of 1930 to fasten personal responsibility upon the owner; (2) by filing separate and independent liens under Code of 1930 section 6428; (3) by taking advantage of a lien perfected by the general contractor. Whichever method is followed, written notice to the owner of the amount and character of the claim is a prerequisite to the perfection of the lien or to fasten personal responsibility upon the owner.

7. MECHANICS' LIENS — Omission of Statutory Provision Fatal. — All the statutory provisions for mechanics' liens are indispensable, and the omission of any one of them is fatal.

8. MECHANICS' LIENS — Subcontractors — Laborers and Materialmen — Written Notice of Amount and Character of Claim — Knowledge Acquired by Owner Through Other Means Than Written Notice. — If a subcontractor desires to obtain a lien or to bind the owner personally, he is required by the express terms of the statute to give written notice of the amount and character of his claim. Knowledge acquired by the owner through other means than a written notice from the subcontractors cannot be substituted for the statutory requirement, in the absence of affirmative evidence showing that the giving of written notice was waived. Failure to perform this essential requirement of the statute is fatal to the establishment of the lien.

9. MECHANICS' LIENS — Subcontractors — Laborers and Materialmen — Written Notice of Amount and Character of Claim — Time in Which Notice Should Be Given — Case at Bar. — In the instant case appellants, subcontractors, seeking to establish a mechanic's lien, contended that even if written notice to the owner was mandatory, the statute does not prescribe the time in which such notice shall be given, and hence it may be given at any time. The answer to this contention is that appellants have never undertaken to give appellees any written notice of the amounts and character of their claims.

10. MECHANICS' LIENS — Subcontractors — Perfecting Lien — Steps Must Be Taken within the Specified Time. — The mechanic's lien law gives a sixty-day period from the time the work was done and the material furnished in which to perfect a subcontractor's lien. Steps taken before that time are premature and steps taken after that time are too late. It was not the legislative intent to give subcontractors an indefinite time in which to perfect their liens.

11. MECHANICS' LIENS — Subcontractors — Assignment of Sum Due General Contractor — Case at Bar. — In the instant case the owners of the land upon which a building was being constructed owned all the stock in the Jefferson Electric Company. At the time the building contract was entered into the general contractor owed the Jefferson Electric Company the sum of $5,000, and before the building was completed this indebtedness was increased to $7,680. No part of the consideration for this debt was used in and about the buildings to be erected. With the consent of the general contractor the owners paid the debt due the Jefferson Electric Company out of the sums due under the building contract. The trial court held that the payment of this debt to the Jefferson Electric Company constituted an assignment pro tanto of the sum due the general contractor, which assignment, by the provisions of the Code of 1930, section 6435, was void as to laborers and materialmen who had perfected their liens in the manner prescribed by chapter 270 of the Code of 1930.

Held: That section 6435 of the Code of 1930 applied only to subcontractors who had perfected their liens on the structures erected, and such assignments were not void as to subcontractors who had no potential right to perfect liens.

12. MECHANICS' LIENS — Subcontractors — "He Who Seeks Equity Must Do Equity" — Case at Bar. — In the instant case the subcontractors who had failed to perfect their mechanics' liens by written notice to the property owners of the amount and character of their claims contended that as the owners voluntarily appealed to a court of equity under the maxim "He who seeks equity must do equity," they should be required to pay these claims. Both the lien and the jurisdiction of the court depend upon the statute and not upon equitable or ethical rules. So that neither the conscience of the chancellor nor the length of his foot can supplement the statute, and vest the court with any jurisdiction except that which is based upon the statute fairly construed.

13. MECHANICS' LIENS — Subcontractors — Written Notice of Amount and Character of Claim — Waiver of Notice — Construction of Stipulation — Case at Bar. — In the instant case appellants, subcontractors, contended that the written notice of the amount and character of their claims required by the mechanic's lien law was waived by the owners, and to prove their assertion, referred to a stipulation of counsel. But upon a literal interpretation of the stipulation, read with the bill, it would appear that the owners did not waive the right to contest the validity of the liens claimed by the appellants, but if there was any doubt on this score, the decree of the trial court constituted a complete bar to the appellants making any such contention in the Supreme Court of Appeals. From this decree it affirmatively appeared that the parties did not agree on the interpretation to be placed upon the stipulation in the trial court, and for that reason final determination of the matter was delayed in order to give the appellants an opportunity to take such proof as they desired, and no proof was introduced tending to show notices were given, or that the appellees had waived notice.

Appeal from a decree of the Court of Law and Chancery of the city of Roanoke. Decree for complainants. Defendants appeal.

The opinion states the case.

Hart & Hart, Engleby & Engleby and Irvin A. Harvey, for the appellants.

Caldwell, Chaney & Loyd and Horace M. Fox, for the appellees.

HUDGINS, J., delivered the opinion of the court.

The only question involved in this appeal is whether or not the appellants have perfected their respective liens as subcontractors under the mechanics' lien statutes.

W. J. Pearman, R. A. Covington and L. G. Priddy, appellees, filed a bill in chancery alleging that in August, 1929, they, as owners of a certain parcel of land in the city of Roanoke, made a contract with Roanoke Construction and Lumber Corporation, as general contractor, to erect a building thereon, according to certain plans and specifications, for a sum not to exceed $19,650 on a cost plus basis; that the owners were compelled to complete the building because of the failure of the general contractor and its consequent inability to comply with the terms of the contract; that a final settlement with the general contractor showed that the owners had overpaid it in the sum of $1,022.75; that H. L. Coleman, Stone Tile and Supply Co., Inc., Adams, Payne...