Knight v. Ferrante
| Decision Date | 28 November 1960 |
| Docket Number | No. 5145,5145 |
| Citation | 202 Va. 243,117 S.E.2d 283 |
| Parties | Charles Louis KNIGHT and Sara Hammond Knight, v. Giuseppe FERRANTE, Robert L. Maxwell, Dorsey S. Beach, and Thomas W. Phillips and Henry J. Klinge, Trustees. Recod |
| Court | Virginia Supreme Court |
C. Louis Knight, Washington, D.C. (James H. Simmonds, Arlington, on brief), for appellants.
Charles S. Russell, Arlington, Ralph C. Mutchler, Jr., Falls Church (Jesse, Phillips, Klinge & Kendrick, Arlington, Harrell & Mutchler, Falls Church, on brief), for appellees.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, MILLER, WHITTLE, SNEAD and PANSON, JJ.
Giuseppe Ferrante filed a bill in equity to enforce a mechanic's lien perfected by him on a dwelling house which Dorsey S. Beach, as general contractor, had agreed to build for Charles Louis Knight and Sara Hammond Knight on a lot owned by the Knights in Arlington county. The bill alleged that Beach, the general contractor, was indebted to the plaintiff in the sum of $420.40, with interest, for the price of labor and materials furnished by him as a "stone contractor" in the construction of the house. Beach, the Knights, and the trustees under a deed of trust on the property were made parties defendant.
Robert L. Maxwell filed an intervening petition to enforce a mechanic's lien which he had perfected on the property in the sum of $1,275, with interest, for the price of work done and materials furnished by him as "a masonry contractor" in the construction of the building.
Beach, the general contractor, did not answer the bill of complaint or intervening petition. The Knights, sometimes herein referred to as the owners, answered asserting the defenses that, (1) the bill and intervening petition were insufficient in law in that they did not properly state the amount, character and nature of the work done and materials furnished, as required by Code, § 43-22; (2) Beach, the general contractor, had failed to complete the work in accordance with the terms of the contract and that the owners were not indebted to him in any amount.
After hearing the evidence ore tenus the lower court overruled the contentions of the owners and entered a decree in favor of the plaintiff, Ferrante, and the intervening petitioner, Maxwell, for the respective amounts claimed by them with interest and costs. It also entered personal judgments in favor of the respective subcontractors against Beach. From this decree Beach has not appealed and the judgments against him have become final. But the Knights have appealed.
In their assignments of error the Knights insist that the bill and intervening petition were insufficient in law in that neither subcontractor had filed with his pleading "an itemized statement of his account" giving the information required by Code, § 43-22. They also contend that the finding of the lower court that the owners were indebted to the general contractor, "in a sum exceeding the aggregate amounts of the subcontractors' liens herein sought to be enforced," is contrary to the law and the evidence. Hence, they say, the liens of the subcontractors are not enforceable.
The underlying facts are these: On May 18, 1957, the Knights entered into a written contract with Beach, as general contractor, whereby he agreed to construct for them a dwelling house on a lot owned by the Knights, described as lot 5 in Riverwood Subdivision, on North 26th street in Arlington county. According to the contract the owners were to pay the contractor for the performance thereof the sum of $37,300, subject to additions and deductions. This amount was to be paid in eight installments, corresponding with the progress of the construction work. During the progress of the work certain extras were ordered by the owners and undertaken by the contractor. The nature and amount of these are not here material.
The evidence shows that the Knights have paid the general contractor seven of the installments and are withholding the final payment, which amounts to 20% of the original contract price plus the price of the extras, or approximately $6,400.
According to the terms of the contract the building was to be completed on or before November 15, 1957. However, this was not done. On January 31, 1958, the Knights moved into the uncompleted building. They claim that much work is yet to be done by the general contractor in order to complete the building in accordance with the terms of the contract and specifications; that despite their numerous complaints these matters have never been attended to; and that the general contractor has abandoned the performance of the contract.
On the other hand, while the general contractor admits that he has abandoned the project, he contends that the building has been substantially completed in accordance with the terms of the contract. The owners have not undertaken to complete the work on the building, nor have they ascertained what it will cost to do so.
First, as to sufficiency of the bill and intervening petition. Code, § 43-22, providing for the enforcement of a mechanic's lien by a suit in equity, requires that, "The plaintiff shall file with his bill an itemized statement of his account, showing the amount and character of the work done or materials furnished, the prices charged therefor, the payments made, if any, the blance due, and the time from which interest is claimed thereon."
Ferrante alleged in his bill that he is a "stone contractor" and "entered into an agreement with" Beach "to furnish flagstone and other stone and labor in the construction of a house then being built" by Beach "as principal contractor" for the defendants, the Knights. Then follows this allegation:
Continuing, the bill identifies by lot and block number the property owned by the Knights on which "the said labor and materials were used." In a subsequent paragraph it is alleged that interest on the balance is due from June 16, 1958.
The statement of account of Maxwell is filed as an exhibit with his intervening petition. The relevant part reads thus:
While the date from which interest is claimed is not shown on the latter account, it is specifically alleged in the petition to be from June 12, 1958.
The Knights attack the sufficiency of the bill and intervening petition because,they say, the statements of account incorporated in or filed with these pleadings do not meet the requirements of Code, § 43-22, in that they are not itemized and do not sufficiently show the amount and character of the work done or materials furnished. They rely upon Gilman v. Ryan, 95 Va. 494, 28 S.E. 875; Brown & Hoof v. Cornwell, 108 Va. 129, 60 S.E. 623, and Furst-Kerber Cut Stone Co. v. Wells, 116 Va. 95, 81 S.E. 22. These cases deal with the sufficiency of the account which was required under the former statute (Pollard's Code of 1904, § 2476) to be filed "in the clerk's office" in perfecting a lien. We held that such an account was "one of the most important steps of the establishment of a mechanic's lien" and that the requirement of the statute must be substantially complied with. Brown & Hoof v. Cornwell, supra, 108 Va. at page 131, 60 S.E. 623, 624.
In the present case we are not concerned with an account which is required to be recorded as an integral part of the lien. The present statute requires the recordation of a memorandum of the lien instead of an account. Code, § 43-4ff.; Burks Pleading and Practice, 4th Ed., § 459, p. 890. Here we are concerned with the account which Code, § 43-22, requires to be filed with ...
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...Borden & Co. v. R.Z.L. Realty Corp.; Murphy v. Guisti (both cases), and Spencer v. Doherty, all supra; see Knight v. Ferrante, 202 Va. 243, 246-248, 117 S.E.2d 283, 286-287 (1960). By answering the case and proceeding to trial on the merits without having first requested further particulars......
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