Jarden v. Pumphrey
| Decision Date | 20 June 1872 |
| Citation | 36 Md. 361 |
| Parties | SAMUEL JARDEN AND WIFE v. EBENEZER PUMPHREY. |
| Court | Maryland Court of Appeals |
APPEAL from the Superior Court of Baltimore City.
The facts of the case, together with the exceptions taken by the defendants, are sufficiently stated in the opinion of the Court.
The cause was submitted on briefs to BARTOL, C.J., GRASON, MILLER and ALVEY, J.
R Emmett Jones, for the appellants.
John C. King, for the appellee.
The questions in this case arise upon a scire facias, on a claim of lien, filed by the appellee against the appellants.
It was proved at the trial that the appellee was employed on or about August, 1868, by a certain Edward D. Preston, a builder and contractor, for a stated sum, to paint a certain house on Barre street, mentioned in the proceedings which Preston had contracted to build and complete by January 1st, 1869, for Amelia Jarden, wife of Samuel Jarden; that Samuel was the agent of his wife in the premises, and, as such agent, made the contract with Preston for building the house; that the appellee was engaged on said painting, on and off, till April, 1869, when, on the 19th of that month, he served a written notice of his intention to claim the benefit of the lien under the statute, upon Samuel Jarden.
Evidence was offered on the part of the appellants to prove that the lot of ground on which the house was built was the separate property of Mrs. Amelia Jarden, and that she was having the house built with money she had inherited from her parents that the notice given by the appellee of his intention to claim a lien was served upon Samuel; but no such notice was served personally upon Amelia Jarden, his wife, nor did he inform her of the fact of its service upon him. But the Court below refused to admit this evidence, and was of opinion that the service of notice upon Samuel Jarden, agent of Amelia, his wife, was valid and legal notice to her. This ruling forms the subject of the first bill of exceptions.
The appellants contend that, under the Code, it was necessary to serve the notice upon Mrs. Jarden personally, and that notice to her husband was not sufficient.
The provisions of the Code relating to notice are as follows, Art. 61, sec. 10: Where a building shall be erected on a lot of ground, belonging to a married woman, by her husband or some person by him employed, the said lien shall not attach unless notice thereof be given to such married woman in writing within sixty days after doing such work, or furnishing such materials, or both, as the case may be.
Sec 11: 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 or owners of the lot on which the building may be erected, or his or their agent, the person or persons so doing work, or furnishing materials, or both, shall not be entitled to a lien, unless within sixty...
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...89 Iowa, 666, 57 N.W. 434; Smith Anthony Stove Co. v. Steere, 65 Mo.App. 87; Laev Lumber Co. v. Auer, 123 Wis. 178, 101 N.W. 425; Jarden v. Pumphrey, 36 Md. 361. such service is authorized where the owner is absent from the county. Wiltsie v. Harvey, 114 Mich. 131, 72 N.W. 134. But if the L......
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...entitle the appellant to a mechanics' lien, based upon a contract with a married woman. This point was not raised or decided in Jarden v. Pumphrey, 36 Md. 364; Six Shaner, 26 Md. 444; Sturmfelsz v. Frickey, 43 Md. 569; Philips on Mechanics' Liens, sec. 95, 108, 112, 113. Irving, J., deliver......
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