Poirier v. E. Coast Realty Co.

• Decision Date: 02 December 1930
• Citation: 152 A. 612
• Parties: POIRIER v. EAST COAST REALTY CO.
• Court: New Hampshire Supreme Court

152 A. 612

POIRIER

v. EAST COAST REALTY CO.

Supreme Court of New Hampshire. Rockingham.

Dec. 2, 1930.

Transferred from Superior Court, Rockingham County; Scammon, Judge.

Action by Emile H. Poirier against the East Coast Realty Company. Transferred to the Supreme Court.

Judgment for defendant.

Assumpsit, to enforce a mechanic's lien. On August 17, 1926, the plaintiff entered into a written contract with Joseph H. Benoit whereby he was to install certain plumbing in a building then in process of construction and owned by the defendant. In this contract, which was prepared by the architect in charge of the work, Benoit was described as owner and contractor. He was in fact merely the contractor. On October 6, 1926, the plaintiff gave in hand to Benoit the following notice, which was addressed to the defendant: "You are hereby notified that, unless paid in full according to the terms of the contract made between me and J. H. Benoit, General Contractor for you, which contract is dated August 17, 1926, and unless paid in full for any and all extras, including labor and materials furnished by me in connection with said contract, I shall duly claim a lien therefor upon your land and buildings."

Benoit, although a stockholder and director of the defendant corporation, did not inform the other directors of the receipt of the notice, and no other officer of the corporation knew that such notice had been served. This concealment by Benoit was deliberate and intentional.

The plaintiff fully performed his contract and brought suit seasonably. If the notice which he gave Benoit was not a sufficient notice to the defendant under the provisions of Pub. Laws 1926, c. 217, § 15, there is to be judgment for the defendant.

Sewall & Waldron, of Portsmouth, for plaintiff.

Conrad E. Snow and Thornton Lorimer, both of Rochester, for defendant.

MARBLE, J.

Before the plaintiff could acquire a valid and enforceable lien, it was necessary for him to give written notice of his claim to the defendant or to some person having charge of the defendant's property. Pub. Laws 1926, c. 217, § 15. Although Benoit, as contractor, had supervision over the construction of the building, it does not appear that he was in charge of the property. Neither does it appear that he was the defendant's expressly authorized agent, or that the defendant had ever held him out to the public as such. Unless, therefore, he had authority to represent the corporation either by statute or by virtue of his official connection therewith, the* notice which the plaintiff gave him was ineffectual to bind the defendant.

The plaintiff argues that section 13 of chapter 331 of the Public Laws 1926, providing that service of writs against a corporation may be made upon one of its directors, is here applicable. While it is true that a subcontractor cannot secure a lien except by giving notice in the statutory mode (Eastman v. Newman, 59 N. H. 581), this does not mean that the notice is in any sense the beginning of the subcontractor's suit.

A writ is a mandatory precept issuing from a court of justice. A notice under Pub. Laws 1926, c. 217, § 15, is merely a statutory method of protecting property owners and subcontractors. Janvrin v. Powers, 79 N. H. 44, 48, 104 A. 252; Boulia-Gorrell, etc., Co. v. East Coast Realty, 84 N. H. 174, 176, 148 A. 28. As is said of an employee's notice of injury under the provisions of the Massachusetts Employers' Liability Act: "It emanates from no court, is not dependent for its validity upon the action of any court, and is no part of any proceeding of a court for the purpose of getting jurisdiction over the defendant, or for any other purpose. It is simply a notice given in pais, from one party to another, for the purpose of fixing a liability, which otherwise would not arise to the dignity of a cause of action." Healey v. Company, 180 Mass. 270, 273, 62 N. E. 270, 271.

Ordinarily in giving any statutory notice the requirements of the statute must be strictly observed. Sowter v. Grafton, 65 N. H. 207, 19 A. 572; Whitcher v. Benton, 48 N. H. 157, 160, 97 Am. Dec. 597. We therefore conclude that the statute relating to the service of writs cannot be successfully invoked in the plaintiff's behalf.

Nor did Benoit merely by virtue of his office as director have power to bind the corporation. Hilliard v. Railroad, 77 N. H. 129, 132, 88 A. 993, and cases cited. "Directors are, it is true, possessed of extensive powers, * * * but these powers reside in them as a board and not as individuals, and only when acting as a board in their collective...