Shackleford v. Beck

• Decision Date: 25 June 1885
• Citation: 80 Va. 573
• Parties: SHACKLEFORD v. BECK.
• Court: Virginia Supreme Court

80 Va. 573

SHACKLEFORD v. BECK.

Supreme Court of Appeals of Virginia.

June 25, 1885

Argued at Staunton and decided at Wytheville.

Appeal from three decrees of circuit court of Clarke county, one rendered in vacation, August 1, 1883, in the cause of John H Shackleford against C. A. Beck and others; another rendered May 23, 1884, in the consolidated causes of Shackleford against Beck and als, and of Candler against Russell.

The object of the first-named suit was to enforce a mechanic's lien on a house built by Shackleford for Beck in Berryville, which, after the recordation of what Shackleford deemed an account in the clerk's office, for the purpose of acquiring a mechanic's lien on the house Beck sold to Candler. At the hearing the circuit court decreed against Shackleford, who appealed from the decree.

Opinion states the case.

Marshall McCormick, for the appellant.

A Moore, Jr., for the appellee.

OPINION

FAUNTLEROY J.

The transcript of the record of these causes (which were virtually one), shows the following facts: The appellant, who is a carpenter and general contractor, under a written contract, dated March 1st, 1882, built for the appellee, C. A. Beck, on his lot in the town of Berryville, in the summer of 1882, a frame dwelling-house, for the contract price of $927. During the progress of the work, some changes were made in the plan, necessitating extra-work, for which extra-charges were made to the amount of $105. The house was completed and turned over to the owner, C. A. Beck, on 29th September, 1882; and an account was rendered to the said Beck by the appellant, which shows the work done and the material furnished; and, after crediting the partial payments, strikes a balance due of $667.

On the 6th October, 1882, appellant filed, in the clerk's office of Clarke county, a paper in the following words, viz: " To balance of account rendered, for work and labor done, and material furnished, for your house; " and he made affidavit to the correctness of it, and appended to it a statement, declaring his intention to claim the benefit of the lien given by law to mechanics. This paper was duly acknowledged and admitted to record.

C. A. Beck, the appellee, in November, 1882, about two months after the recordation of this aforesaid paper, sold and conveyed the said property to L. W. Candler, for the consideration of $1500, of which he paid in cash $750 to McDonald and Moore, attorneys for the vendor, Beck, and retained in his hands the residue to meet certain liens upon the property. To the December rules, 1882, of the circuit court of Clarke county, the appellant filed his bill, alleging his lien upon the property, and asking its enforcement; and, in the alternative, alleging the non-residence of C. A. Beck, and that both Candler, and McDonald and Moore, had money in their hands belonging to him, and praying that it might be attached and subjected to his debt. Candler and Moore both answered the bill, and attack the validity of appellant's lien.

The question involved in the controversy is, whether the appellant duly complied with the requirements of the law in filing his account, as embodied in the paper aforesaid, filed by him, under the 3rd and 4th sections of chapter 115 of the Code of 1873?

The judge of the circuit court was of the opinion that the said paper relied on by the appellant to sustain his lien, was " invalid and ineffectual for such purpose, because it is not drawn and recorded as the law requires, and that the relief prayed for in said bill, so far as it is based upon said paper, should be denied, and doth so decide."

Sections 2, 3 and 4 of chapter 115 of the Code of 1873, provide the machinery by which a mechanic or general contractor may avail himself of the lien there given. There have been several amendments of these sections, but they relate only to the time within which the account must be filed in the clerk's office. Two modes of securing a lien are provided: one, under the second section, by recording the written contract, when there is one; and the other, under section four, by filing in the clerk's office a true account of the work done or material furnished, sworn to by the claimant, with a statement attached, declaring his intention to claim the benefit of the lien, and setting forth a brief description of the property. A mechanic may proceed under either the one or the other of these modes; and this whether there be a written contract or not. Merchants & Mechanics Savings Bank v. Dashiell, 25th Gratt. 621.

The proceeding in this case was under the 3d and 4th sections, obviously for the reason that the recordation of the written contract would not have covered the extra work. The appellant elected to proceed under the 3d and 4th sections; and the question to be determined is, whether he complied with the conditions prescribed in these said sections?

The 3d section enacts, " All artizans, builders, mechanics, lumber-dealers, and others performing labor or furnishing materials for the construction, repair or improvement of any building or other property, shall have a lien, as hereinafter provided, upon such property," & c.

The 4th section prescribes what shall be done by one seeking to secure the benefit of the provisions contained in the 3d section, as follows: " A general contractor, wishing to avail himself of the lien given him by the preceding section, shall file, within thirty days after the completion of the work, in the clerk's office of the county or corporation court of the county or corporation in which the property upon which a lien is sought to be secured is situated, * * a true account of the work done or material furnished, sworn to by said claimant or his agent, with a statement attached signifying his intention to claim the benefit of said lien, and setting forth a brief description of the property upon which he claims the lien. It shall be the duty of the clerk in whose office such account and statement shall be filed, as hereinbefore provided, to record the same in a book kept for that purpose; and from the time of such filing all persons shall be deemed to have notice thereof."

The appellant contented himself with filing with the clerk a statement of a balance of money due per account rendered --previously to C. A. Beck. To comply with the statute, the account need not have been rendered to Beck; but it must have been filed in the clerk's office and recorded by the clerk. The language of the statute is clear, simple and unambiguous, and whatever may have been the reason for requiring the contractor to file his account for recordation, it has prescribed in express, plain and unmistakable language, the way --and the only way --in which the purpose it had in view can be effected. There was no such lien, as that provided for by this statute, known to the common law, or to the courts of equity. It is purely a creation of the statute, and it must be availed of, if at all, upon the terms and conditions which the statute prescribes.

The appellant, in his petition for a supersedeas, says: " The statute requires a true account--not an itemized account; and an account may be true though it be not itemized. " It is difficult to conceive how, without items, there can be an account--which is an itemized or detailed statement of the transactions to which it relates. But the difficulty in this case is not alone that it is not an itemized account, but that it is not an account of the things required by the statute--of work done and material furnished. But if it be true, as insisted, that when a contract is made in gross for the erection of a building, and supplying the material entering into its construction, the law is complied with by filing a statement of the amount due and owing for the work, it is not applicable in this case because a considerable portion of the work was done, and material furnished, under verbal contract or contracts, outside of and not included in the written contract...