House v. Fissell

• Decision Date: 19 March 1947
• Docket Number: 89.
• Parties: HOUSE et al. v. FISSELL et al.
• Court: Maryland Court of Appeals

51 A.2d 669

188 Md. 160

HOUSE et al. v. FISSELL et al.

No. 89.

Court of Appeals of Maryland

March 19, 1947

Appeal from Circuit Court, Howard County; James E. Boylan, Jr. Chief Judge.

Suit by Henry B. House and another, partners trading as Henry House & Sons, against Walter S. Fissell and others to enforce a mechanics' lien. From a decree allowing and providing for enforcement of lien for part of the amount claimed complainants appeal.

Decree affirmed in part and reversed in part and cause remanded for modification of decree in accordance with opinion.

W Herbert Mellor and William Henry Forsythe, both of Ellicott City, for appellants.

John L. Clark and James Macgill, both of Ellicott City (J. E. Bindeman, of Washington, D. C., on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, GRASON, HENDERSON, and MARKELL, JJ.

DELAPLAINE, Judge.

Henry B. House and Carroll M. House, partners trading as Henry House and Sons, building contractors, instituted this suit in the Circuit Court for Howard County to enforce a mechanics' lien against Walter S. Fissell and his daughters, Leone E. Fissell and Hattye F. Colbert.

Complainants are brothers residing in Ellicott City. They allege in their bill of complaint: (1) That they agreed to build a three-story building for defendants in Ellicott City, and to furnish all materials and labor necessary for its erection and were to be paid on a cost-plus basis; (2) that they completed the work on February 7, 1945, and although their claim is overdue, defendants have refused to pay the same; and (3) that on July 21, 1945, complainants filed their claim for $9,238.51 as a lien against the property, setting forth the materials furnished and the labor performed, including overhead expenses in connection therewith and their five per cent profit.

The chancellor allowed complainants $8,351.31 for materials, $4,542.29 for their own labor, and $4,253.08 for other workmen, making a total of $17,146.68. As defendants had paid $11,626.84 on account, the chancellor allowed a lien for $5,519.84, and decreed that unless defendants paid that amount, with interest from July 21, 1945, the property should be sold by trustees. Complainants have appealed from that decree.

The first contention of complainants is that the chancellor should have allowed each of them $1.75 instead of $1.43 3/4 per hour. It was found that Henry had worked 1477.86 hours, and Carroll 1682 hours. They claim that the chancellor should have allowed them $987.46 more than he did. The contract between the parties was not in writing, and there was no definite agreement as to wages. Where no definite wage is agreed upon in a building contract, the wage to which the builders are entitled is the reasonable value of the work done. Jackson v. Davey Tree Expert Co., 134 Md. 230, 236, 106 A. 571; Bates v. St. Anthony's Church of South Omaha, 111 Neb. 426, 196 N.W. 638. It appears that the highest wage paid by complainants to any carpenter employed by them on this building was $1 per hour, or $8 for an 8-hour day. Another carpenter was paid $6 and afterwards $7. Another was paid $5 and afterwards $6. Defendants produced an expert who testified that the maximum wage for carpenters in the area between Baltimore and Frederick was $1.43 3/4 per hour, or $11.50 for an 8-hour day. As the carpenters employed by complainants were paid between $5 and $8 per day, we hold that the allowance of $11.50 per day for complainants is sufficient. It is true that they had the responsibility of erecting the house; however, they receive five per cent profit, which the other carpenters do not receive. They also insisted that they acted as foremen. We do not question that a lien may be secured under the Mechanics' Lien Law for superintending the construction of a building. Breeding v. Melson, 4 W.W.Harr., Del., 9, 143 A. 23, 60 A.L.R. 1252. But in this case the contractors usually had only two carpenters working for them, and never had more than three. In the court below a contractor of long experience testified that he would not need two foremen on a construction job unless he had 50 or 100 men working for him, and that if he had only two or three men, he would be the foreman himself. We see no reason to disturb the chancellor's allowance of $1.43 3/4 per hour.

The second contention is that the chancellor should have allowed the 'overhead expenses.' This claim was originally for $1,504.38, but was reduced to $1,149.38 to cover the following items: (1) Workmen's compensation insurance $149.40; (2) fire and public liability insurance, $162.68; (3) gasoline and oil used in the trucks for hauling materials to the building, $397.30; (4) rental for storage of lumber, $125; and (5) preparing plans, $315. Ordinarily general overhead charges should not be allowed as a part of the compensation of a contractor employed under a cost-plus contract. General overhead expenses are expenses which are incurred in connection with the general operation of a business, and are not charged exclusively to any particular department or project. Charles Behlen Sons' Co. v. Ricketts, 30 Ohio App. 167, 164 N.E. 436, 439; Guillot v. State Highway Commission of Montana, 102 Mont. 149, 56 P.2d 1072, 1075. Thus it has been specifically held that executive salaries, rents, interest charges, depreciation, taxes and general office expenses cannot be allowed a contractor under a cost-plus provision. Lytle, Campbell & Co. v. Somers, Fitler & Todd Co., 276 Pa. 409, 120 A. 409, 27 A.L.R. 41. In Whicher Development Corporation v. Ross, 142 Md. 522, 121 A. 372, where the appellant argued that premiums for workmen's compensation insurance cannot be included in a mechanics' lien, the Court found it unnecessary to decide the question. We now hold that a building contractor is entitled to...