Pasarew Const. Co. v. Tower Apartments

• Decision Date: 02 December 1955
• Docket Number: No. 43,43
• Citation: 118 A.2d 678,208 Md. 396
• Parties: PASAREW CONSTRUCTION COMPANY, Inc. v. TOWER APARTMENTS, Inc.
• Court: Maryland Court of Appeals

Page 396

208 Md. 396

118 A.2d 678

PASAREW CONSTRUCTION COMPANY, Inc. v. TOWER APARTMENTS, Inc.

No. 43.

Court of Appeals of Maryland.

Dec. 2, 1955.

Donald H. Rothman, Baltimore (Gordon, Feinblatt & Rothman, Baltimore, on the brief), for appellant.

W. Lee Harrison, Towson, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a decree of the Circuit Court for Baltimore County, in equity, passed on April 25, 1955, amending its previous decree in response to a mandate of this Court issued in an earlier appeal in the same case reported in 205 Md. 566, 109 A.2d 744. The appellant contends that the mandate left open the question of interest on a mechanics' lien claim, and that the Chancellor erred in declining to allow interest.

On May 6, 1952, the appellant, a general contractor, filed a mechanics' lien in the court below, against a dwelling it had built for the appellee, in order to secure payment of the sum of $19,938.30. After trial, the Chancellor entered a decree on January 28, 1954, in the amount of $11,567.08, without interest, to be paid in full satisfaction of the lien, open tender of the proper releases, the court retaining jurisdiction to entertain an application for sale of the premises in default of payment and release. Upon appeal, and cross-appeal, we held that the Chancellor erred in reducing the builder's fee specified in the contract from $5,000 to $2,500, and in disallowing a labor item of $1,500. Accordingly, on December 10, 1954, we entered an order in this form: 'Decree reversed, with directions to increase the amount payable to the plaintiff by $4,000, costs of this appeal to be paid by the appellee.' Upon remand and after full consideration of a petition claiming interest from May 6, 1952, the Chancellor simply amended the prior decree to increase the award by $4,000, without change in other respects.

The appellant contends that it is entitled to interest as a matter of right, from the date of filing its lien claim. In Trustees of, German Lutheran Evangelical St. Matthew's Congregation v. Heise, 44 Md. 453, 472, Judge Alvey, reversing the decree appealed from, held that interest should be allowed from the the time of filing the lien claim for record, although not charged or claimed in the account. Again, in Hensel v. Johnson, 94 Md. 729, 737, 51 A. 575, a decree that allowed interest only from the date of the last item in the account was reversed to allow interest from the date of filing the mechanics' lien claim. Code 1951, art. 63, § 26, authorizing an owner to pay into court the amount claimed by a lienor, including interest and costs, at least tacitly recognizes a right to interest. The appellee does not appear to challenge the correctness of the rule adopted in these cases, although it relies upon the general rule that the allowance of interest in equity is discretionary, and argues that the decree lacks the attributes of a money judgment, since the proceeding is in rem. Cf. Gaybis v. Palm, 201 Md. 78, 83, 93 A.2d 269. Its chief contention is that the claim of interest, made by petition after remand under the mandate of this Court, comes too late.

In Moore v. Equitable Ice Co., 131 Md. 558, 102 A. 928, after the affirmance of a decree in a mechanics' lien case, allowing interest from the date of the decree, and after the property had been sold to the appellee, the appellant, by petition, sought the allowance of interest from the date of filing. On a second appeal, it was held that the alleged mistake in failing to claim interest from the earlier date was not one falling within the exception to the general rule forbidding the opening of an enrolled decree. While the case is distinguishable on the ground that the decree was enrolled and the rights of third parties might have been affected by an opening of the decree, we find no intimation in the opinion that this Court would have approved a modification of the decree after affirmance, to permit the allowance of interest for a period prior to the date of the decree, even if the petition had been presented before the decree had become enrolled. The most that can be claimed is that this Court left that question open as unnecessary to a decision in the case.

In Winter's Executors v. Gittings, 102 Md. 464, 62 A. 1033, 1034, a bill was brought to declare the proceeds of certain securities sold by a husband in his life time to be the property of the legal representative of his wife. A decree dismissing the bill was reversed by this Court, and the case remanded for further proceedings with a statement in the opinion that the amount with which his estate should be charged "should be ascertained at $29,000." On remand, the Chancellor passed a decree for the sum of $29,000 'together with interest thereon from the date of this decree". It was held on cross-appeal that the remand for further proceedings did not permit an accounting but definitely fixed the amount to be recovered, and that the decree was in conformity with the mandate, although this Court could have entered a decree without remanding. The appeal challenged the allowance of interest only from the date of the decree, and not from the date of the husband's death. It was held that interest was not recoverable as a matter of right, under the circumstances of the case, since the amount due could not be definitely ascertained until the passage of the decree. But the Court also said, 102 Md. 464 at page 470, 62 A. at page 1035: 'Moreover, the opinion of this court ascertained the amount due as $29,000, and said nothing about interest, and in passing its decree the circuit court certainly conformed literally to the opinion and decree of this court in allowing interest only from the date of its own decree.' No question was raised as to the allowance of interest from the date of the decree. It seems to have been conceded that since the original bill had been dismissed and this Court remanded for further proceedings after ascertaining the amount to be recovered, the allowance of interest from the date of the decree to be entered was left open. The only contention on the second appeal concerned the claim of interest prior to the date of the decree, and it was held that this was properly disallowed.

In the instant case the decree appealed from in the former appeal fixed the amount payable 'without interest', after the allowance of interest had been urged upon the Court by counsel for the appellant, deliberately considered, and...