Furst-kerber Cut Stone Co. Inc v. Wells

Decision Date12 March 1914
Citation81 S.E. 22,116 Va. 95
PartiesFURST-KERBER CUT STONE CO., Inc. v. WELLS et al.
CourtVirginia Supreme Court

1. Mechanics' Liens (§ 149*) — Account —

Sufficiency.

An account for cut stone furnished by a subcontractor, showing merely the total amount of the bill therefor and the balance due after deducting payments specified, does not show the material was contracted for as an entirety for a specified sum; and, not showing the amount of stone furnished or the prices charged therefor, it is not a sufficient basis for a lien under Code 1904, § 2477.

[Ed. Note.—For other cases, see Mechanics' Liens, Cent. Dig. §§ 256-259; Dec. Dig. § 149.*]

2. Mechanics' Liens (§ 132*)—Time fob Filing Claim.

A lien cannot be acquired unless the claim therefor is filed as required by Code 1904, § 247G, within 60 days after the work is completed.

TEd. Note.—For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*]

3. Bankruptcy (§ 138*)—Property Vesting in Trustee.

A subcontractor who failed to perfect his lien is not entitled, as against the trustee in bankruptcy of the general contractor, to a lien on the balance due him, paid into court by the general contractor.

[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 193-204, 206-209; Dec. Dig. § 138.*]

Appeal from Circuit Court of City of Norfolk.

Suit by the Furst-Kerber Cut Stone Company, Incorporated, against Jacob Wells and others. From a decree for defendants, plaintiff appeals. Affirmed.

Burroughs & Bro. and G. A. Martin, all of Norfolk, for appellant.

Thos. W. Shelton, Thorp & Thorp, and J. D. Hank, all of Norfolk, for appellees.

BUCHANAN, J. The first question to be determined upon this appeal is whether or not the appellant, the Furst-Kerber Cut Stone Company, has a mechanic's lien on the fund paid into court.

It appears that in the year 1910 the Ninth Street Baptist Church (colored) of Norfolk entered into a contract with Jacob Wells, as general contractor, to erect a church building for a certain sum. Wells shortly afterwards sublet the cut stonework on the building to C. H. Consolvo, who was to furnish the stone and do the work in putting the stone into the building. Thereupon Consolvo entered into a contract with the appellant company for the cut stone ready to be placed in the building. The cut stone was furnished by the appellant to Consolvo, but before he completed the work of placing the stone in the building he was adjudged a bankrupt. Before his bankruptcy Consolvo had paid the appellant a part of the purchase price of the material furnished. When Consolvo went into bankruptcy the appellant undertook to perfect a lien on the church building for the residue of the purchase price of the stone furnished by it as a subcontractor, under the provisions of section 2477 of Virginia Code, 1904. It is insisted here, as in the court below, that it failed to perfect its lien under that section upon numerous grounds. In the view this court takes of the case, it will be unnecessary to consider any of these grounds except as to the character of and the time when its account and declaration of intention to claim a lien on the church building were filed in the clerk's office, as required by section 2477 of the Code.

The appellant filed a statement of its claim and its declaration of its intention to claim a lien on three different occasions. The first of these was filed January 25, 1911, but it is conceded that under the decision of this court in Clement v. Adams Bros., 113 Va. 547, 75 S. E. 294, such filing was not in accordance with the statute. The next was filed in the clerk's office August 1, 1912, but the appellant, fearing that the statement of its claim might not be sufficient, filed the third on the 22d day of that month, in which it was stated that the cut stone "was contracted for as an entirety and as a whole, the specific purchase price for the same being $1,900."

The objection made to the account filed August 1st is that it does not comply with the statute, in this: That it fails to state either the amount of materials furnished and the prices charged therefor, or that the cut stone was contracted for as an entirety for a specific sum.

It is not claimed that the account in question shows the amount of cut stone furnished or the prices charged therefor, but it is insisted that this was not necessary, since the contract for the cut stone was entire and for a specific amount, and that the account filed showed this.

It does appear from the evidence, as it did in Taylor v. Netherwood, 91 Va. 88, 20 S. E. 8S8, that the material was contracted for as an entirety for a specific sum, but the account in this case fails to show, as it was held the account in Taylor v. Netherwood did, that the material furnished was contracted for as an entirety for a specific sum, or that it was furnished under an express contract. For all that appears from the account, the material may have been furnished under an implied contract, and the amount stated as due may have been the appellant's estimate of its value.

The account is as follows:

"November 15, 1910.

"E. H. Consolvo,

                -------------------------------------------------------------------------------
                |"To the Furst Kerber Cut Store Company. For Indiana limestone    |    |$1,900|
                |furnished the Ninth Street Baptist Church (colored), Berkley     |    |00    |
                |Ward, Norfolk, Va                                                |    |      |
                |-----------------------------------------------------------------|----|------|
                |Amount paid on account by E. H. Consolvo, On first car by frt.   |$225|      |
                |and check                                                        |00  |      |
                |-----------------------------------------------------------------|----|------|
                |On second car by frt                                             |140 |      |
                |                                                                 |00  |      |
                |-----------------------------------------------------------------|----|------|
                |On
...

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7 cases
  • American Standard Homes Corp. v. Reinecke
    • United States
    • Virginia Supreme Court
    • January 8, 1993
    ...(1941); accord United Masonry, Inc. v. Riggs National Bank, 233 Va. 476, 480, 357 S.E.2d 509, 512 (1987); Furst-Kerber Cut Stone Co. v. Wells, 116 Va. 95, 99, 81 S.E. 22, 24 (1914); Trustees Franklin Street Church v. Davis, 85 Va. 193, 194-95, 7 S.E. 245, 246 On brief, American Standard arg......
  • Perrin & Martin, Inc. v. United States
    • United States
    • U.S. District Court — Eastern District of Virginia
    • July 28, 1964
    ...its inchoate mechanic's lien. Its failure in this regard causes the lien to be no longer in existence. Furst-Kerber Cut Stone Co. v. Wells, 116 Va. 95, 81 S.E. 22, 24 (1914). In this case the Court pointed out that a materialman who had not perfected his lien was simply a general creditor o......
  • Coleman v. Pearman
    • United States
    • Virginia Supreme Court
    • September 22, 1932
    ...Ryan, 95 Va. 494, 28 S.E. 875; Maddux Buchanan, supra; Diebold & Sons' Stone Co. Tatterson, 115 Va. 766, 80 S.E. 585; Furst-Kerber Co. Wells, 116 Va. 95, 81 S.E. 22; 18 R.C.L., sections 57 and 58, pp. 926, If a subcontractor desires to obtain a lien or to bind the owner personally, he is re......
  • Coleman v. Pearman
    • United States
    • Virginia Supreme Court
    • September 22, 1932
    ...Gilman v. Ryan, 95 Va. 494, 28 S. E. 875; Maddux v. Buchanan, supra; Diebold v. Tatterson, 115 Va. 766, 80 S. E. 585; FurstKerber Co. v. Wells, 116 Va. 95, 81 S. E. 22; 18 R. C. L. §§ 57 and 58, pp. 926, 927. If a subcontractor desires to obtain a lien or to bind the owner personally, he is......
  • Request a trial to view additional results

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