Fulton v. Parlett & Parlett
| Decision Date | 15 June 1906 |
| Citation | 64 A. 58,104 Md. 62 |
| Parties | FULTON et al. v. PARLETT & PARLETT. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Anne Arundel County; W. H. Thomas and Jas. Revell. Judges.
Proceeding by Parlett & Parlett against Winifred B. Fulton and another for the foreclosure of certain mechanics' liens. From a decree in favor of petitioners, both parties appeal. Affirmed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PEARCE, SCHMUCKER and BURKE, JJ.
James R. Brashears, for Fulton.
Frank H. Stockett, for Parlett & Parlett.
This is a mechanic's lien case. Cross-appeals were taken from a decree of the circuit court for Anne Arundel county by the owner of the property affected by the lien and by the materialmen, who filed the bill in equity upon which the decree was passed. The decree sustained the lien claim, and appointed trustees to sell a portion of the real estate described in the proceedings. From that decree the owner appealed, and has assigned in this court four reasons for its reversal. Those reasons are, first, that the notice given by the materialmen to the owner is defective, because it failed to state that the claimants intended to claim a mechanic's lien, and omitted to aver that the contractors had been employed by the owner; secondly, that the lien claim is defective because the itemized account does not show for which of the three several buildings that were erected the different parcels of materials furnished were designed thirdly, that more land was decreed to be sold than was necessary for the ordinary and useful needs and purposes of the buildings; and fourthly, that the decree erroneously directed the claims of several lienors to be paid out of the proceeds of sale, though they were not plaintiffs', but had duly filed claims in the clerk's office and were made defendants in the equity proceedings. The appeal taken by the plaintiffs assails the decree because all the land owned by the defendant Mrs. Fulton was not adjudged to be sold.
Before discussing these various contentions, a brief outline of the facts must be given. On September 9, 1903, Henry S. Mancha and others conveyed to Winifred B. Fulton a small lot of ground, containing about 65/100 of an acre, situated 1 3/4 miles from Annapolis. On September the 15th of the same year John T. Wilkinson and others conveyed to the same Winifred B Fulton a parcel of land, containing about six acres, adjoining the first-named lot. On the 1st day of October, 1903, Edward M. Fulton, the husband of Winifred B. Fulton, entered into a written contract with Wells & Ward, by which the latter agreed to erect and complete for him a two-story frame cottage on the six-acre lot of his wife, and to furnish all the labor and material necessary therefor in consideration of the sum of $2,980. At the same time, though the date does not definitely appear, but undoubtedly it was just before or as the work was begun on the house, Mr. Fulton entered into a verbal agreement with Wells & Ward to erect for him on the same property a stable to cost $175 and a duckhouse, for which no price was stipulated, but which cost "about two hundred and fifty or three hundred dollars." The contractors procured much of the materials as they were needed for all three structures from Parlett & Parlett, and the latter began furnishing those materials on October the 3d, and finished on December the 1st; the deliveries being continuous and almost daily. All of the materials so furnished by them went into the three buildings, but were not ordered specifically for the separate buildings, and the itemized account appended to the lien claim does not indicate what parts of the materials were used in the different structures. They were all furnished under one continuous contract with the builders. On December 31, 1903, Parlett & Parlett duly served upon Mrs. Fulton, the owner of the land, a written notice, informing her that they "claim and shall forthwith file their claim in the office of the clerk of the circuit court for Anne Arundel county *** their lien in the nature of mechanic's lien under the provisions of article 63, Code of Public General Laws," in the sum of $1,378.40, for materials furnished Wells & Ward, contractors, and used by them "in and about the building and erection of your dwelling and outbuildings" on the lots or parcels of land conveyed by the deeds that have already been referred to. On the same day the claim for a mechanic's lien was duly filed in the office of the clerk of the circuit court for Anne Arundel county. On March 28, 1904, the bill of complaint now before us for the enforcement of the lien was filed. On this state of facts the questions which are involved and which have been mentioned above have arisen.
First. Was the notice given by Parlett & Parlett to Mrs. Fulton defective because it failed to state that the lienors intended to claim a mechanic's lien, and omitted to aver distinctly that Wells & Ward were contractors who had been employed by Mrs. Fulton to erect the buildings? The objections to the decree embodied in the above inquiry are founded on sections 11 and 19 of article 63 of the Code of 1904. By section 11 it is provided that if the contract for furnishing work or materials shall have been made with a builder or with any other person, except the owner of the land on which the building is to be erected or his agent, the person so doing work or furnishing materials "shall not be entitled to a lien unless within sixty days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien." The notice actually given, as hereinbefore pointed out, advised Mrs. Fulton that Parlett & Parlett "claim and shall forthwith file their claim" of a mechanic's lien in the office of the clerk of the circuit court; but because it omitted to say that the lienors intended to claim such a lien it is alleged to be defective. This contention is founded on a very narrow and literal interpretation of the words of section 11, without the least reference to the purpose which the enactment was designed to subserve. The notice prescribed by section 11 of an intention to claim a lien is required to be given to the owner by the materialman to enable the owner to retain under section 13 from the amount due to the contractor or builder the sum which the contractor or builder may owe to the materialman, and any phraseology which clearly and distinctly apprises the owner of the intention of the materialman to claim the lien will gratify the terms of the section and effectuate its design, though the word "intention" be not used at all. A notice that the materialmen "claim and shall forwith file" a mechanic's lien claim under article 63 of the Code is quite as definite in respect to the intention of the materialman to claim the lien as would have been a notice couched in the precise language of the section. It is difficult to perceive how one can declare that he claims and shall forthwith file a mechanic's lien, unless he means by that declaration that it is his intention to claim such a lien. The intention to claim a lien could not be more definitely expressed than by the statement that the lien is claimed and will be forthwith filed. The owner was just as fully informed by the notice given that the claimants intended to file a lien claim, as she would have been had the notice specifically stated that it was the intention of the lienors to claim such a lien. The cases cited by the appellants' counsel do not support their contention because the facts in those cases are radically different from the facts in this case. In Hess, Reid et al. v. Poultney & Brown, 10 Md. 257, the notice consisted of a letter addressed by the counsel of the materialman to one of the owners, wherein the latter was informed that a lien had been laid, but neither the amount claimed nor the kind of materials furnished was mentioned, and in conclusion the writer stated: "I have learned since that you had an interest in this property, and I shall not, of course, issue a sci. fa. until I see you upon the subject." The notice was held insufficient, because, among other reasons, it omitted to state the lienor's intention to claim the benefit of the lien. The court said: "Although the lien laws are to be construed...
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