Miller v. Barroll

• Decision Date: 15 July 1859
• Parties: BENJAMIN MILLER and DANIEL KAUFFMAN v. JAMES E. BARROLL.
• Court: Maryland Court of Appeals

14 Md. 173

BENJAMIN MILLER and DANIEL KAUFFMAN v. JAMES E. BARROLL.

Court of Appeals of Maryland.

July 15, 1859

Appeal from the Court of Common Pleas.

This is a mechanics lien case. The claim filed by the appellants was for painting and glazing done by them upon a house. The proceedings prior to the trial are fully stated in the opinion of this court.

1st Exception.--The plaintiffs having proved that they did the whole painting on the house in question, and that it, and the lot on which it was erected, at the time the house was commenced belonged to Kridler, and that it was built under the superintendence of Kridler's foreman, then offered to prove that the plaintiffs had painted several other houses in 1853 and 1854, for Kridler, and in each instance had done the whole painting on such houses. This evidence was offered for the purpose of allowing the jury to infer from it in connection with the evidence in the cause, that the plaintiffs had done the work on the house in question in pursuance of a contract with Kridler, or generally, that they had contracted to do all the painting for houses built by Kridler in 1853 and 1854. The defendant objected to the admissibility of this evidence, which objection the court (Marshall, J.) sustained, and to this ruling the plaintiffs excepted.

2nd Exception.--The plaintiffs then offered to prove that, just about the time the house in question and the adjoining one which Kridler was also building, were being commenced Kridler said to one of the plaintiffs that he wanted them to prime the frames for said houses and see about painting these houses. This evidence was offered as tending, in connection with the other evidence in the cause, to prove that the painting done by the plaintiffs was done under a contract with Kridler to do all the painting for the house in question. To the admissibility of this evidence the defendant objected, which objection the court sustained, and to this ruling the plaintiffs excepted.

3rd Exception.--The plaintiffs proved that they were partners and did the work, and furnished the materials, set forth in their claim of lien, for the building therein mentioned; that the building was commenced in the summer of 1853, and at that time Kridler was the owner of the lot on which it was erected. They further proved by Houck, that the plaintiffs commenced painting on the frames of the windows for this house about the time, or shortly after its commencement, and that they did all the painting on it, and that the last painting was done in July 1854. On cross-examination this witness testified that the house was finished in the spring of 1854; that Mr. Barroll had another building added, and an observatory on top, and an office made in the basement; the alterations were made by Kridler; the same hands did the extra work that did the original work; witness was foreman for Kridler and superintended the building and also the extra work; the plaintiffs did the painting on the new work; they commenced painting in July 1853 and finished in July 1854 witness knows nothing personally of a sale to Mr. Barroll the house was not completed when the alterations were commenced; he does not know whether all the painting was then done or not. They further proved by Miller, a brother of one of the plaintiffs, that he was employed by them and worked for them on this house; he commenced in 1853, some time in the summer; he recollects the alteration of the basement, and that all the painting was not finished when the alterations were commenced; that the plaintiffs painted all the alterations; witness did not know any thing of Mr. Barroll in the matter at all.

The defendant then offered in evidence a deed from Kridler to Barroll for this house and lot, dated the 18th of May 1854, and duly recorded the next day. The plaintiffs then asked the following instruction to the jury.

That if the jury find from the evidence that the plaintiffs did the work, and furnished the materials set forth in the claim of lien, for the house therein described, in pursuance of an employment by Kridler to do and furnish the same, and that at the time of so employing them Kridler was the owner of the building and the lot on which it was erected, and that said work was done and said materials furnished continuously until the work and materials done and furnished by the plaintiffs for the building were completed, and that a portion of said work and materials was furnished and done for said building within six months before the filing of their claim for lien, and in pursuance of said employment by Kridler, then that it was not necessary for the plaintiffs to give any notice to the defendant Barroll of their claim and intention to claim the benefit of a lien therefor, in order to entitle them to the benefit of a lien on said building and lot, even though the jury may also find that after the employment of the plaintiffs by Kridler, and more than six months before the filing of this claim for lien, Kridler sold and conveyed the building and lot to the defendant Barroll, unless the jury shall further find that the plaintiffs had other notice of such sale and conveyance than is given by its being recorded, or shall find that there was no work done or materials furnished within six months before the filing of this lien, in pursuance of an employment by Kridler whilst he was actual owner of the building and lot.

The defendant then offered the following prayers:

1st. That the plaintiffs cannot recover in this case, because this court has no jurisdiction over the subject matter in controversy.

2nd. That if the jury find the making, delivery and recording of the deed offered in evidence by the defendant, and further find that thereafter Kridler went on to complete the building, mentioned in the proceedings, and to make additions and alterations thereto, as contractor and not as owner, then the plaintiffs cannot recover for any work or materials furnished after the 19th of May 1854, because there is no evidence of notice, as required by the Act of 1845, ch. 176, sec. 1.

3rd. That the plaintiffs are not entitled to recover for any work or materials furnished for the building, described in the proceedings, before the 19th of May, 1854 if the jury find the making, delivery and recording of the deed from Kridler to Barroll, offered in evidence by the defendant, and further find, that the lien claimed by the plaintiffs was not filed till the 16th of December, 1854.

The court (Marshall, J.) refused the plaintiffs' prayer and granted the second and third prayers of the defendant, and to this ruling the plaintiffs excepted.

4th Exception.--This exception was taken by the defendant to the refusal of the court to grant his first prayer, as stated in the preceding exception.

The verdict and judgment were in favor of the defendant and the plaintiffs appealed.

The cause was argued before LE GRAND, C. J., TUCK and BARTOL, JJ. Edward Israel and Levin Gale, for the appellants, argued:

1st. That the evidence offered in the first and second exceptions should have been admitted to prove an employment by Kridler, when owner, to do the work, and from which the jury might infer the nature, extent and character of the employment. Jones v. Shawhan, 4 Watts & Serg. 262. Holden v. Winslow, 6 Harris 160. Bartlett v. Kingan, 7 Harris 341. Yearsley v. Flanigen, 10 Harris 491.

2nd. The principal question presented by the third exception is, whether the sale by Kridler to Barroll, in May 1854, whilst the house was in process of erection, altered or affected the rights of mechanics who were then engaged in doing, and continued afterwards to do, work under a previous employment by Kridler, as owner? The instructions of the court took away from the jury all questions of fact as to the time and nature of the employment of the plaintiffs, and defeated their claim on the sole ground of the sale to Barroll. The appellants contend:

1st. That the mechanic is only to look to the person who is owner at the time the building is commenced, or at the time he makes his contract. Acts of 1838, ch. 205, sec. 9, 1845, ch. 176, sec. 1, and 1845, ch. 287. Ins. Co. v. Pringle, 2 Serg. & Rawle, 138. Pennock v. Hoover, 5 Rawle 291. Jones v. Shawhan, 4 Watts & Serg. 262. Holden v. Winslow, 6 Harris 160. Yearsley v. Flanagen, 10 Harris 491. Okisko Co. v. Matthews, 3 Md. 168. Wells v. Canton Co., Ib. 241. Denmead v. Bank of Baltimore, 9 Md. 184.

2nd. That if a change does affect it, it ought to have been left to the jury to say whether or not Kridler was acting as agent for Barroll.

3rd. That it ought to have been left to the jury to say whether or not Kridler was the reputed owner.

4th. That no question is raised as to the addition, and if such question was intended to have been raised it should have been submitted to the jury.

3rd. The point raised by the defendant's exception is, as to the jurisdiction of the Court of Common Pleas to enforce mechanics' liens. Ever since the organization of the two courts in Baltimore, it has been a disputed point, in lien cases, where the claim was for a sum between $100 and $500 whether the jurisdiction belonged to the Common Pleas or to the Superior Court. Each court has entertained jurisdiction and enforced claims in such cases, but the point has not yet been before the Court of Appeals. In this state of doubt, it has been the practice of many members of the bar to file the claim for a lien in both courts, and this was done in this case. The amount not being large, ($476.39,) the plaintiffs did not care to run the risk of being thrown out of court and put to costs on a question of jurisdiction, and therefore did not issue a scire facias, but determined to wait until the question should be adjudicated by the...