Sodini v. Winter
| Decision Date | 23 February 1870 |
| Parties | JOSEPH SODINI and JOHN W. LEITER v. HENRY WINTER, et al., trading as HENRY WINTER & SONS. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court for Washington County.
In this cause a scire facias was issued by the appellees the plaintiffs below, against the property of the appellant Joseph Sodini, to recover the sum of $634.35--being the amount due on a mechanics' lien for seventy-eight thousand seven hundred bricks sold and delivered by the appellees to John W. Leiter, contractor and builder of the house proceeded against. After trial and verdict, the Court rendered judgment in favor of the plaintiffs for $675 50 from this judgment the defendant appealed.
To the scire facias the defendant, Sodini, appeared by counsel and filed nine pleas, to some of which the plaintiffs demurred, and the Court ruled the demurrer good as to the fifth and ninth pleas.
At the trial the Court signed five bills of exceptions at the request of the defendant, and of the six prayers offered by the defendant refused to grant the second, fourth and sixth. After verdict there was a motion in arrest of judgment, which was overruled.
The counsel for the appellant abandoned, in this Court, all objections to the ruling of the Court below, except on the demurrer to the fifth plea, on the fourth exception, and in refusing to grant the second, fourth and sixth prayers of the defendant.
The fifth plea and fourth exception are sufficiently set out in the opinion of the Court.
The following are the rejected prayers of the defendant:
2. If the jury shall find from the evidence, that the plaintiffs delivered the materials as laid and claimed in their lien claim, (if they find a lien claim to have been made and filed,) and that the same were used in the construction and erection of the house of the said Sodini, yet the plaintiffs are not entitled to recover in this case, if they further find that after the delivery of all the bricks, the plaintiffs, or either of them, in the presence of the said Leiter and Sodini, declared that they looked only to Leiter the contractor, for the money, and would not look to or hold Sodini for the same, then such declaration amounts to an express waiver of this lien, and the plaintiffs are not entitled to recover.
4. If the jury believe from the evidence, that the materials charged in the said claim were furnished on the credit and individual liability of the said Leiter, the contractor, and not on the credit of the defendant, Sodini's building, the plaintiffs are not entitled to recover.
6. If the jury shall find from the evidence in this cause, that the bricks or materials sued for in this case were delivered by the plaintiffs to the defendant, Sodini, and that they were used in the construction and building of the house mentioned in the writ of scire facias by John W. Leiter, the contractor, the plaintiffs are not entitled to recover in this action, if the jury further find that the bricks so delivered and used were sold to Sodini by the plaintiffs themselves, and were delivered upon an independent and original contract between the plaintiffs and the defendant, Sodini.
The remaining facts are detailed in the opinion of the Court.
The cause was argued before BARTOL, C.J., BRENT, GRASON, MILLER and ROBINSON, J.
A. K. Syester and F. M. Darby, for the appellant.
D. H. Wiles, Thos. Rowland and J. Tho. Mason, for the appellees.
In this case, a proceeding by scire facias was instituted to enforce a mechanics' lien for bricks furnished by the appellees for, and used in, the erection of a house, of which the appellant, Sodini, was owner, and Leiter was the contractor and builder. The owner appeared and pleaded nine pleas, of which the fifth and ninth were ruled bad upon demurrer. At the trial, five exceptions were taken by the appellant, and a motion in arrest of judgment was also made and overruled. The appellant's counsel has made no point, either in his brief or in his oral argument, upon the first, second and third exceptions, or in support of the ninth plea, or of the motion in arrest. All objection to the Court's action, in these particulars, was very properly abandoned. This leaves for our consideration and review the sufficiency of the fifth plea, the correctness of the ruling in the fourth exception, and the rejection of the appellant's second, fourth and sixth prayers.
The fifth plea is, that the materials were furnished by the plaintiffs on the individual and personal credit of...
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...in value to the extent of the labor and material so furnished. Colter v. Frese, supra; White v. Miller (1851), 18 Pa. 52; Sodini v. Winter (1869), 32 Md. 130. thus appears that the right to the lien is imposed by the statute, under the conditions therein stipulated, irrespective of the cons......
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...unqualified in its terms," and that "[c]onsideration [was] found in the provisions of the contract itself." Id. at 706 (citing Sodini v. Winter, 32 Md. 130 (1870)); see also id. (discussing Perper v. Fayed, 247 Md. 639, 641 (1967)) (finding that if subcontractor wanted to create a more narr......
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Evans Marble Co. v. International Trust Co.
... ... remedy," and is "bounded and circumscribed by the ... terms of its own creation." 13 Encyc. of Plead. & Prac ... 942. In the case of Sodini v. Winter, 32 Md ... 130-133, it is said: "This peculiar lien does not ... originate in contract. It is purely a creature of positive ... ...
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McFadden v. Stark
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