T. Dan Kolker, Inc. v. Shure

• Court: Maryland Supreme Court
• Writing for the Court: Before BRUNE; COLLINS
• Citation: T. Dan Kolker, Inc. v. Shure, 209 Md. 290, 121 A.2d 223 (Md. 1956)
• Decision Date: 12 March 1956
• Docket Number: No. 105,105
• Parties: T. DAN KOLKER, Inc. v. Arthur A. SHURE and Fay Shure, his wife.

Page 290

209 Md. 290

121 A.2d 223

T. DAN KOLKER, Inc. v. Arthur A. SHURE and Fay Shure, his wife.

No. 105.

Court of Appeals of Maryland.

March 12, 1956.

H. Richard Smalkin and Arnold Fleischmann, Towson (Morton J. Hollander, Baltimore, Smalkin, Hessian, Martin & Taylor, and A. Frederick Taylor, Towson, on the brief), for appellants.

Saunders M. Almond, Jr., Towson (Jenifer & Jenifer, Towson, on the brief), for appellees.

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

COLLINS, Judge.

This is an appeal from a decree granting the enforcement of part of a mechanic's lien, and denying enforcement of the remainder of said lien.

In the latter part of 1953 Arthur A. Shure and Fay Shure, his wife, appellees, entered into a contract with Mr. Albert Miller, president of Georgetown Construction Company (Miller), a body corporate, for the construction of a home on their lot for $32,500. As a result of that contract Mr. Miller approached the appellant, T. Dan Kolker, Inc. (Kolker), which operated a lumber yard in Baltimore City. On October 30, 1953, Mr. Kolker, president of Kolker, and Mr. Miller entered into a written contract for millwork in the amount of $2,587.51 to be furnished for the Shure dwelling.

About the time this written contract was made, Mr. Kolker and Mr. Miller discussed the rough lumber to be furnished on this job. Mr. Kolker testified that he told Mr. Miller that he would sell him the rough lumber at the 'going price' at the time and that Mr. Miller agreed to buy from him whatever rough lumber he needed for the Shure house at the 'going price'. Mr. Miller testified that he told Mr. Kolker that he would buy all his rough lumber from him provided his deliveries and price 'were right' at the time the material was desired. He further said that he only agreed to buy the rough lumber from Mr. Kolker if the price was satisfactory, and that if the price was not low enough Mr. Kolker could not compel him to buy it.

When asked by the Court why a definite contract was entered into for the millwork and not for the rough lumber, Mr. Miller replied: 'You see, lumber, there aren't too many millwork shops, and a residence of this type was special millwork involved, and you have got to have time to make it up. While, if you need rough lumber, you can call up any yard and say, 'Have you got this and this size in stock,' and, 'When can you deliver it?" He further said that the order for the rough lumber was more or less a 'bait' for the millwork. He also said: '* * * my procedure was, and the instruction to the superintendent was on the job when he needed material, he would see me in the morning, and tell me. I would go to the phone, and I called up T. Dan Kolker, and say, 'Have you got this and this in this size?' If they didn't have it, I would say, 'Forget about it.' If they had it, 'What is the price.' I might call up one or two other companies, particularly Pulaski who were working on a very narrow margin, and so on. I mean--but Kolker always got first preference, because I felt I had an obligation to him because we made a deal on the millwork. He had first choice.' The invoices were made out by Kolker to 'Georgetown Construction Co. & A. Miller, (Shure Residence, Stevenson Lane and Anton Farms Road).' The items of millwork and lumber were carried as a single account on the invoices and on Kolker's books. It was admitted that all the materials listed in the liens claimed on these invoices were delivered to the Shure property.

Kolker extended credit to Miller and began supplying materials on the Shure job on December 10, 1953, and charged the millwork and rough lumber in one and the same account. On the invoices sent to Miller these items were not differentiated. Kolker continued to deliver material to Miller without any payment until June 25, 1954, at which time Kolker claimed a balance owing of $4,730.30. Miller had sent several checks to Kolker which were returned by the bank for lack of funds. On July 14, 1954, Miller sent Kolker a check on a Towson bank for $401.37 which was paid, and when credited to the Miller account, left a balance of $4,328.93.

In June, 1954, Miller, on account of financial difficulties, abandoned the contract with Shure. After that time the construction of the house was done under the personal supervision of Mr. Shure. On July 14, 1954, and again on July 16, 1954, Kolker gave proper notice by registered mail of its intention to file a mechanic's lien in the amount of $4,329.33 against the Shure dwelling. Attached was an itemized invoice. The Shures, appellees, admit that they received this notice of intention to file on July 17, 1954. Kolker, pursuant to said letters, on September 17, 1954, filed the mechanic's lien for $4,329.33. Deducting the payment of $401.37 from $4,730.30 leaves a balance of $4,328.93 and not $4,329.33. The appellees, Shures, having failed to pay that lien, Kolker, the appellant, brought this suit in equity for its enforcement. During the trial of the case it was found that an item charged in the amount of $19.38 had been returned. The amount therefore claimed by the appellant is $4,309.55.

The chancellor was of the opinion that there was a contract for the millwork but no contract for the rough lumber. Accordingly a decree was signed ordering the balance of the payment for the millwork in the amount of $2,078.41, without interest, in full payment and discharge of the mechanic's lien. From that decree appellant appeals.

Code 1951, Article 63, Section 11, provides: 'If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected, or his agent, the person so doing work or furnishing materials, or both, shall not be entitled to a lien unless, within sixty days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien.'

From the account filed it appears that rough lumber was delivered to this project from January 5, 1954, up to and including May 25, 1954. The last two items of rough lumber delivered were on March 18, 1954, charged at $10.48, and on May 24, 1954, charged at $19.80. This last delivery of $19.80 was within the sixty-day period required for notice of intention to file the lien.

Of course, the mechanic's lien law was passed to protect materialmen. This Court has laid down the rule that it is to be construed in the most liberal and comprehensive manner in favor of mechanics and materialmen. Blake v. Pitcher, 46 Md. 453, 464; Real Estate & Improvement Co. v. Phillips, 90 Md. 515, 527, 45 A. 174; Fulton v. Parlett & Parlett, 104 Md. 62, 64 A. 58; Caltrider v. Isberg, 148 Md. 657, 668, 130 A. 53. In the late case of Bounds v. Nuttle, 181 Md. 400, 406, 30 A.2d 263, 266, it was said: 'The mechanic's lien law was passed to cover just such a situation and to protect materialmen. The theory of it is that the owner gets the benefit of the materials, and he has control of the money. If he negligently and carelessly pays the money out to the contractor without taking precautions to see that it is applied to the payment of the materials which go in the building, then he must stand the loss rather than the materialman, who has no opportunity to protect himself once he has delivered the materials.'

All parties agree that there was a contract for the millwork. The first question to be decided is whether there was a contract for the rough lumber delivered.

Mr. Miller said he agreed to buy all the rough lumber from the appellant provided its deliveries and prices were right at the time the material was desired. He further testified that he called up, inquired as to price, ordered the lumber, and it was delivered. Sometimes when a vague offer and acceptance have been acted upon and thus construed by the parties, the original uncertainty in the agreement is thereby removed. When the offer to supply goods is accepted by a promise to buy from the offeror all the promisor may need of the goods in question within a certain time at a fixed price, and the goods are later purchased at a fixed price and delivered, the contract has been executed. In Trustees of German Lutheran Evangelical St. Matthew's Congregation v. Heise, 44 Md. 453, a materialman sought to enforce a mechanic's lien against the church edifice for bricks furnished the contractor in the erection of the church. Judge Alvey said in that case: 'The objections to the claim are, first, that the materials were not furnished under a continuous contract, and, as nearly all the materials were furnished more than sixty days before notice given of claimants' intention to claim a lien, under the Code, Art. 61, sec. 11, and more than six months before the time of filing the lien claim for record, under the 23rd section of the same Article of the Code, therefore the lien is not good, except for the materials actually furnished within those periods; * * *. The account, as stated and filed with the claim for lien, and which is proved to be correct, shows that the materials were continuously furnished within the period stated, during the progress of the building. The items are very numerous, and deliveries were made at short intervals of a few days, as the materials were wanted at the building; and this course of dealing continued during the entire period covered by the account.

'The lien law, Code, Art. 61, secs. 1, 11, speaks of the contract for furnishing work or materials to the builder, or other person than the owner; but we do not understand from this that it is incumbent upon the claimant to establish the fact that there was an express antecedent contract made with respect to the exact quantity of work or materials to be done or furnished by him. In the absence of evidence of such express contract, the character of the account, the...