J. D. Loizeaux Lumber Co. v. Davis

• Decision Date: 03 August 1956
• Docket Number: No. A--274,A--274
• Citation: 41 N.J.Super. 231,124 A.2d 593
• Parties: J. D. LOIZEAUX LUMBER COMPANY, a corporation, Plaintiff-Appellant, v. Helen DAVIS and Michael Davis, husband and wife; Michael Schack and Elizabeth Schack, husband and wife, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 231

41 N.J.Super. 231

124 A.2d 593

J. D. LOIZEAUX LUMBER COMPANY, a corporation, Plaintiff-Appellant, v. Helen DAVIS and Michael Davis, husband and wife; Michael Schack and Elizabeth Schack, husband and wife Defendants-Respondents.

No. A--274.

Superior Court of New Jersey Appellate Division.

Argued July 9, 1956.

Decided Aug. 3, 1956.

Cuddie E. Davidson, Jr., Westfield, for appellant (Davidson & Davidson, Westfield, attorneys; Robert J. T. Mooney, Newark, on the brief).

Morris Spritzer, New Brunswick, for respondents.

Before Judges FRANCIS, HUGHES and KNIGHT.

The opinion of the court was delivered by

FRANCIS, J.A.D.

The problem presented here is whether a materialman's notice of intention was signed as required by the Mechanics Lien Act, N.J.S. 2A:44--72, N.J.S.A., and if not, whether the plaintiff should have been permitted to amend it under N.J.S. 2A:44--73, N.J.S.A.

Defendants Helen Davis and Michael Davis, husband and wife, and Michael Schack and Elizabeth Schack, husband and wife, are owners of certain premises at 25 Whitehead Avenue, South River, N.J. Some time before February 1, 1954 they entered into a contract with one Waldemar Hanselmann for the performance of certain construction work thereon. The contract was not filed as authorized by N.J.S. 2A:44--75, N.J.S.A., and as the result the premises remained subject to a lien in favor of materialmen who complied with N.J.S. 2A:44--71 and 72, N.J.S.A.

Under section 71 a materialman who expects to supply materials to the contractor, makes himself eligible for a lien if he files in the office of the proper county clerk a notice of intention to do so prior to the furnishing thereof. The notice is required by section 72 to be 'signed by or on behalf of the person for whose benefit it is filed' and contain:

'a. The name of each person who, within 10 days prior to the filing, shall have been the owner of record of the estate in the land to which the lien is to attach;

'b. A description of the land sufficient to identify it;

'c. The name of the one for whom the labor is to be performed or to whom the materials are to be furnished; and

'd. The full name and address of the one for whose benefit the notice is filed, and the name of anyone whose signature, when affixed to any instrument relating to such right of lien, shall be binding on the one for whose benefit the notice is filed.' (Emphasis added.)

Prior to February 1, 1954 Hugh B. Sweeney, credit manager of the plaintiff J. D. Loizeaux Lumber Company, talked with the attorney for the owners about the financial capacity of the contractor in connection with the impending sale to him of certain materials. The attorney explained the amount involved in the general contract, and in the course of the conversation plaintiff's agent said he would file a notice of intention. On February 1, before delivery of any materials, such a notice was filed.

Since the controversy centers around the notice, it seems advisable to set it forth in full:

'To the County Clerk of Middlesex County:

In compliance with the requirements of Title 2, Chapter 60, Article 10 of the Revised Statutes of 1937, and the supplements thereto and amendments thereof, this notice of an intention to perform labor or furnish materials or both is hereby submitted to you for filing and recording as required by the provisions of said act.

Notice Is Given

as of 2/1/1954

(a) That Helen Davis & Michael Davis her husb & Michael Schack & Elizabeth Schack hs. wf.

is the name of one who, within ten days prior to the filing of this notice, is or has been the owner of record of an estate in the lands hereinafter referred to, to which the lien under the aforesaid act may attach;

(b) That the lands to which any lien protected by this notice can or may attach are identified by the following description thereof, viz--lying and being in

Boro of South River, Middlesex County, N.J.

Located at the northeast corner of Whitehead Ave and Augusta St.

More fully described in deed book 1718 pgs 22 & 25 &c

(c) That any labor and/or materials to be performed or furnished in connection with any building operation upon the above described lands under the protection of this notice will be upon the order of and at the expense of

Waldemere Hanselmann

(d) That Fred D. Loizeaux or A. A. VanderVeer or Hugh B. Sweeny

is the name of the person or persons whose signature shall be binding on the one for whose benefit this notice is filed when affixed to any instrument relating to any right of lien existing by virtue of the filing of this notice; and the full name and address of the one for whose benefit this notice is filed is as follows:

Name J. D. Loizeaux Lumber Company

By: _ _ Attorney-in-Fact

Address 861 South Avenue Plainfield N.J.

City

_ _861

State'

The italicized words were typed; the remainder was a printed form.

It is not disputed that thereafter lumber and other materials to the extent of $9,906.75 were furnished to Hanselmann by plaintiff and used in the construction work. Payment not having been made, on July 26, 1954 plaintiff filed a lien claim in that amount. Among other things it recites the names of the mortgagees, and Hanselmann and William R. Coyle who, as prospective lien claimants, had recorded notices of intention subsequent to that of plaintiff. On the same day suit was brought thereon against the owners, mortgagees, Hanselmann and Coyle. Judgment was sought generally against Hanselmann for $9,906.75, specially against the land of the owners for that amount, and as to all defendants except the owners the complaint asked a declaration of the priority of plaintiff's lien over their notices of intention.

The mortgagees and Coyle failed to appear or answer the complaint or to charge in any way that plaintiff's lien was defective. Hanselmann admitted the purchase and use of plaintiff's goods but cross-claimed against the owners, alleging breach of contract by them. He sought $7,375 damages thereon. The owners apparently then counterclaimed against him. Over the objection of Hanselmann these actions between the contractor and owners were severed at the trial because of the illness of one of the owners, who was said to be an important witness on the cross-claim and counterclaim.

The answer of the owners asserted, among other things, that the plaintiff's notice of intention was invalid because it was not signed. Some time later the Lumber Company, without conceding the lack of signature, moved to amend so that it would appear to be signed by one of its officers. In doing so, reliance was placed upon N.J.S. 2A:44--73, N.J.S.A., which provides as follows:

'At any time before judgment on a lien claim the superior court or the court before whom the action on such lien claim is pending, on application of the lien claimant and on reasonable written notice to all parties interested, may order any mechanic's notice of intention filed pursuant to section 2A:44--71 of this title to be amended, In matter of substance as well as form, whenever it shall appear to said court that such amendment can be justly made; * * *.' (Emphasis added.)

A county judge other than the one who tried the case heard the motion and denied it by letter, saying that in his opinion the 'statute does not permit this court to amend the materialman's notice of intention heretofore filed * * *.' No order was ever entered to formalize the denial. When the application to amend was renewed at the trial, the court noted the previous disposition and remarked: 'It might very well be that under the circumstances his action would be binding upon me.' However, he decided the matter independently, saying: 'But I do not premise my decision upon that.' Since the defendants entered no order on the earlier motion, we shall consider the latter and final determination as the basis for our review.

This brings us to a discussion of the two major issues argued by the parties.

No express finding was made below as to whether or not the notice was signed within the meaning of the statute. Although the plaintiff appears to have taken the position (particularly on the application to amend) that the signing was adequate, in the course of delivering his oral opinion at the close of the proof, the trial court said:

'In this case the notice of intention admittedly was not signed by the materialman.'

Actually we find nothing in the record to establish an admission of that legal consequence. Of course, it has to be conceded that the lien in the form which was provided for the signature of the attorney-in-fact under the typewritten name of the corporation was blank. But it does not follow that such blank, without more, means as a matter of law that the form was unsigned. In fact, plaintiff argues strenuously in the brief that the typewritten name is the signature.

I. Is The Notice Of Intention Signed?

At the outset it should be recalled that a primary purpose of the notice of intention is to inform a landowner who has engaged a general contractor to do construction work on his premises that a particular person or firm is about to provide the contractor with materials for use in connection with the project.

The statute imposes a mandatory requirement that the notice 'be signed by or on behalf of the person for whose benefit it is filed.' The impression to be gained from the legislative language is that the essential considerations are accurate identification of the materialman and authentication of the information given. The motive for the mandate to sign is not, as is the case with the statute of frauds, to safeguard a person against the imposition of an obligation unless his signature on a writing shows that the obligation was consciously and knowingly assumed.

It will be noted that the statute does not demand a holographic signature. See Finnegan v. Lucy, 157 Mass. 439, 32 N.E. 656, 657 (Sup.Jud.Ct.1892). Ordinarily an instrument satisfies a general statutory requirement for signing, even that...