Himelfarb v. B & M Welding & Iron Works, Inc.

• Decision Date: 03 June 1969
• Docket Number: No. 251,251
• Citation: 253 A.2d 842,254 Md. 37
• Court: Maryland Court of Appeals
• Parties: Herbert A. HIMELFARB et al. v. B & M WELDING AND IRON WORKS, INC.

Page 37

254 Md. 37

253 A.2d 842

Herbert A. HIMELFARB et al. v. B & M WELDING AND IRON WORKS, INC.

No. 251.

Court of Appeals of Maryland.

June 3, 1969.

Richard B. Bland, Hyattsville (Welsh & Lancaster, Hyattsville, and Donald M. Caplan, Washington, D. C., on the brief), for appellants.

Calvin R. Sanders, Rockville, for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, FINAN, and SINGLEY, JJ.

SINGLEY, Judge.

This is an appeal from an order of the Circuit Court for Prince George's County enforcing a mechanics' lien in the amount of $27,443.78 claimed by B & M Welding and Iron Works, Inc. (B & M) against property owned by Himelfarb and others. Joined as a defendant was Frederick W. Berens, Inc. (Berens), which held a construction deed of trust note secured by a deed of trust on the property. Because the deed had not been recorded until after the commencement of construction, B & M's lien, if valid, would take precedence over that of the deed of trust. Berens challenges the validity of B & M's lien on the ground that the notice given by B & M to the owners failed to meet the requirements of our mechanics' lienstatute, Maryland Code (1957, 1968 Repl.Vol.) Art. 63 (the Act).

B & M was a subcontractor and, in order to perfect its lien, was required to give notice to the owner, as provided for by the Act, § 11(a):

'If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected, or his agent, the person so doing work or furnishing materials, or both, shall not be entitled to a lien unless, within ninety 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.'

Sometime in early March, 1967, B & M's counsel had the following letter, dated 16 February 1967, delivered to each of the owners:

'Please take notice that the undersigned, on behalf of B & M Welding and Iron Works, Inc., Gaithersburg, Maryland, intends to file a mechanics lien against property owned by you and known as Riverdale Plaza and further identified as Parcel A, 'Riverdale Plaza', as shown in Plat Book W.W. 58, at folio 13, one of the Land Records of Prince George's County, Maryland, for labor and materials provided for the said B & M Welding and Iron Works, Inc., in connection with a shopping center being erected upon said property.

'This lien claim arose by virtue of a contract between the said B & M Welding and Iron Works, Inc., and Cohen-Himelfarb and Associates, Silver Spring, Maryland, the general contractor for the said construction. The amount of this lien claim is $29,831.28.

'The total sum due for labor and materials was $175,353.28, of which $145,522.00 has been paid to date, leaving a balance due and payable of $29,831.28.'

Berens says that for a notice to be deemed sufficient, it must specify the time when the work was done or the materials were furnished, and that we have so held in District Hgts. Apts., Inc. v. Noland Co., 202 Md. 43, 95 A.2d 90, 39 A.L.R.2d 387 (1953) and Welch v. Humphrey, 200 Md. 410, 90 A.2d 686 (1952).

B & M replies that substantial compliance with the notice requirement is all that is necessary and relies on G. Edgar Harr Sons v. Newton, 220 Md. 618, 155 A.2d 480 (1959) and Mashkes v. Jakenjo, Inc., 220 Md. 457, 154 A.2d 439 (1959) and reminds us that Cutler and Shapiro, The Maryland Mechanics' Lien Law-Its Scope and Effect, 28 Md.L.Rev. 225 (1968) at 241, relying on Harr, concludes that '(a)pparently the exact time when the work was performed or the materials supplied need not be specified.' As we see it, a careful reading of Harr and Mashkes makes it clear that exact time need not be specified if the notice makes it clear that the work was performed or the materials supplied at some time within 90 days. In both Mashkes and Harr there was sufficient information in the notice to inform the owner that the last work had been done or the last materials supplied in the performance of an indivisible contract within the 90 days next preceding the date of the notice. To the same effect are Parkway Estates, Inc. v. Burnham, 210 Md. 64, 122 A.2d 326 (1956) and Treusch v. Shryock, 51 Md. 162 (1879).

While it is true that the mechanics' lien law is to be liberally interpreted in favor of mechanics and materialmen, Caton Ridge, Inc. v. Bonnett, 245 Md. 268, 225 A.2d 853 (1967); Giles & Ransome, Inc. v. First Nat'l Realty Corp., 238 Md. 203, 208 A.2d 582 (1965); Reisterstown Lumber Co. v. Reed, 224 Md. 499, 168 A.2d 385 (1961); T. Dan Kolker, Inc. v. Shure, 209 Md. 290, 121 A.2d 223 (1956); Johnson v. Metcalfe, 209 Md. 537, 121 A.2d 825 (1956), it is equally true that the lien, having been created by statute, is obtainable only if the requirements of the law are substantially complied with. Freeform Pools, Inc. v. Strawbridge Home for Boys, Inc., 228 Md. 297, 179 A.2d 683, 95 A.L.R.2d 1365 (1962); Dente v. Bullis, 196 Md. 238, 76 A.2d 158 (1950); House v. Fissell, 188 Md. 160, 51 A.2d 669 (1947); Maryland Cas. Co. v. Lacios, 121 Md. 686, 89 A. 323 (1913); Kenly v. Sisters of Charity, 63 Md. 306 (1885).

'* * * Although it is settled that the statute is to be construed in the most liberal and comprehensive manner in favor of mechanics and materialmen, the party seeking a lien must nevertheless come within the plain meaning and obvious purpose of the statute. And where a person is not within the statutory provisions, the scope of the law may not be extended by the courts.' Giles &amp Ransome, Inc. v. First Nat'l Realty Corp., supra, at 205, 208 A.2d at 583.

B & M argues that the Act, § 11(a) requires only a notice of 'intention to claim such lien'; that its notice did this; and that 'the time when the materials were furnished or the work done' is a part of the claim, as prescribed by § 19 of the Act. If this were a case of first impression, we might find B & M's argument persuasive.

However, virtually the same contention was made in Welch v. Humphrey, supra, and was rejected by our predecessors:

'It has always been held in Maryland that if...