Pittsburgh Steel Prod.S Co v. Huntington Masonic Temple Ass'n

• Decision Date: 30 October 1917
• Docket Number: (No. 3209.)
• Citation: 81 W.Va. 222,94 S.E. 127
• Parties: PITTSBURGH STEEL PRODUCTS CO. v. HUNTINGTON MASONIC TEMPLE ASS'N et al.
• Court: West Virginia Supreme Court

94 S.E. 127

(81 W.Va. 222)

PITTSBURGH STEEL PRODUCTS CO.

v.HUNTINGTON MASONIC TEMPLE ASS'N et al.

(No. 3209.)

Supreme Court of Appeals of West Virginia.

Oct. 30, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Cabell County.

Proceeding by the Pittsburgh Steel Products Company against the Huntington Masonic Temple Association, Moore Construction Company and others claimants. Decree for part of claimants, and the Moore Construction Company appeals. Affirmed in part, reversed in part, and remanded.

Geo. S. Wallace and Philip P. Gibson, both of Huntington, for appellant.

Williams, Scott & Lovett, of Huntington, for appellees Huntington Lumber & Supply Co. and Parker. Meek & Renshaw, of Huntington, for appellees Thomas H. and H. C. Harvey.

LYNCH, P. The object of these proceedings is to determine the legal sufficiency of lien claims for material and labor to participate in a fund of $5,000 substituted in lieu of the property on which was erected the building for the construction of which it is alleged the material and labor were used. The back Construction Company contracted with the Huntington Masonic Temple Association, the owner of the property, to construct a seven-story re-enforced concrete Masonic temple, and to furnish the material and labor necessary therefor, in consideration of $121,500, to be paid upon estimates made by the architect. J. E. Berry, a member of the contracting company, having with its consent assumed the sole responsibility for the contract obligation, offered and the Masonic Temple Association accepted the Citizens' Trust & Guaranty Company as surety in an indemnity bond in the penalty of $25,000, conditioned upon the completion of the construction work in conformity with the plans and specifications adopted for that purpose. Because Berry failed or was unable to prosecute the work with due diligence, the indemnity company, upon notice to it by the Masonic Temple Association, entered into a contract with the Moore Construction Company to complete the work undertaken by him, upon the same consideration and payments and according to the terms of the agreement with the Iback Construction Company. In the prosecution of the work to completion, the Moore Construction Company, the principal contractor, and C. C. Wambaugh, a subcontractor, each on his own account and credit, purchased of the lien claimants material some part or all of which was used in the construction work. The liens, payment of which out of the $5,000 fund is sought, are asserted by H. C. and T. H. Harvey jointly, P. C. Parker, and the Huntington Lumber & Supply Company; the liens of the latter being for material sold directly to the Moore Construction Company and for material sold to Wambaugh. On each of these several accounts a balance only remains unpaid.

The objection raised by appellant, one that lies at the very foundation of each claim, is that the Moore Construction Company does not occupy the position of principal contractor or subcontractor in relation to the Masonic Temple Association within the meaning and intendment of chapter 75 of the Code, and that therefore the property involved is not subject to the liens asserted. Section 3 of that chapter, devoted primarily to the procedure by means of which liens upon property may be obtained, is intended really to protect those who furnish material or perform labor under a contract with a principal contractor or his subcontractor for the erection of any structure provided for in a contract between an owner or his authorized agent and the principal contractor. The Citizens' Trust & Guaranty Company did employ the Moore Construction Company; but the Masonic Temple Association joined in executing the contract, under which the building was completed on the lot, the legal title to which is vested in the association. After stating by way of recitals the contract with the Iback Construction Company, the substitution of Berry instead of the firm, his failure to complete the building, notice thereof to the surety, and the surety's procurement of the Moore Construction Company to finish the work, the contract contains the material provision that the construction company agrees to complete the building in accordance with the terms of the Iback contract for the sum of $121,500, payable in accordance with that contract-To the new contract so secured the Huntington Masonic Temple Association affixed its corporate name and seal; and, in addition to joining as a party, it accepted the building as finally completed, paid part of the consideration therefor as the work progressed, made final settlement and adjustment of the accounts, acknowledged its liability to the contractor for the balance found due, and otherwise acted as if it had actually procured the completion of the building¹ through the agency of the last contractor. In legal contemplation, therefore, the property improved became subject to any liens obtained in the manner authorized by the Mechanics' Lien Law. To disallow or reject the claims on this ground, under these circumstances, would tend to defeat the obvious purpose of the act, and work injustice, where protection was the ultimate object to he attained.

A second ground assigned for reversing the decree, in so far as it allowed the claim of the two Harveys as liens chargeable against the fund in question, is that they accepted in payment an order drawn by the Moore Construction Company upon the Miller Supply Company for the amount then claimed to be due on the account, under some arrangement whereby the supply company became sponsor for the contractor. What the arrangement actually was is not disclosed; nor does it appear affirmatively in any conclusive manner whether the Harveys consented to rely for payment exclusively upon the credit of the drawee. There was some correspondence which, considered alone, may indicate an intention to rely solely upon the order. But H. C. Harvey's positive statement to the contrary, not in any wise controverted, overcomes any inferences based upon that paper. The mere acceptance is not sufficient. It does not imply a purpose to waive resort to an action on the account against the purchaser or to a lien under the statute. Such a paper certainly stands on no higher ground than a note, draft, or other similar paper, which, as held in Cushwa v. Association, 45 W. Va. 490, 32 S. E. 259, will not operate as a waiver of the right to proceed for the collection of the debt against the party liable therefor, except when the parties so understood and agreed at the time of the acceptance. Bodley v. Denmead, 1 W. Va. 249; Bank v. Trigg Co., 106 Va. 327, 56 S. E. 158; 27 Cyc. 267, 272.

Whether these claimants obtained their lien within the time required by the statute depends upon the testimony of II. C. Harvey and the approval of the Moore Construction Company indorsed on the account. Harvey says the account is correct, and the items specified therein entered into the construction of the building. On the first point of the statement he is corroborated by the indorsement, and, as to both, by the testimony of W. E. Moore, president of the Moore Construction Company who, when asked to state whether or not the account was correct in amount, replied:

"To the best of my knowledge the account is 1 about right. I cannot say as to dollars and cents, because I did not see everything that went into it; but I remember it was about $400, something like that."

And he says the material charged in the account was such as was required to complete the building, and that it was used in its construction. But it is urged that the last two items, amounting to $3.57, were tacked to the account merely to bring it within the 35 days allowed by the statute for giving notice to the property owner. The lapse of time between the dates of these items and the next preceding items was approximately six months. But that discrepancy or difference is not sufficient to justify the exclusion of these two items, unless it appears that they Were tacked on solely for the purpose indicated; and there is nothing sufficient to create more than a mere suspicion of a fraudulent intention to effect that object. While the proof leaves some room for doubt' whether the material represented by the two charges did actually enter into the construction of the building, we think the evidence, considered in its entirety, is sufficient to sustain the allowance of the items over this objection.

The objection to the P. C. Parker account is that it is not itemized as required by the statute. The contract between him and the Moore Construction Company was for painting, varnishing, and glazing, for which services and material he was to receive a lump sum of $775. This is the larger of the two items in the account. Where the charge is for a gross sum under a contract therefor in the aggregate, an itemization is not necessary. Bateson & Co. v. Baldwin...