Taylor v. Netherwood.1

Decision Date31 January 1895
Citation91 Va. 88,20 S.E. 888
PartiesTAYLOR et al. v. NETHERWOOD.1
CourtVirginia Supreme Court

Mechanic's Lien—Sufficiency of Notice—Verification—Decree.

1. Section 2476, Code 1887, in reference to mechanics' liens, requires a brief description of the property upon which the lien is claimed, and section 2478 provides that no inaccuracy shall invalidate the lien if the property can be reasonably identified by the description given. Held, that a description: "That certain three-story

building No.——, situate and being in the city of

Richmond, Va., on G. street, between S. and H. streets, and the lot or piece of ground and curtilage appurtenant to the said building, fronting on the south side of G. street 49 feet, and running back 156 feet more or less, * * * of which Wirt E. Taylor is the owner or reputed owner, "—was sufficient

2. Where the account accompanying a mechanic's lien sets forth that the work was contracted for as an entirety, and for a specific sum, all the information on this point is given that is required under section 2478, Code 1887, providing that no inaccuracy in the account filed shall invalidate the lien if the account conform substantially to law.

3. Section 2476, Code 1887, requiring mechanics' liens to be verified by the oath of the claimant, is satisfied where a notary public certifies that the claimant "made oath to the correctness of the account."

4. Where a contractor agrees "not to delay the work any time after the stone is delivered, " he cannot be held responsible for a delay caused by the failure to deliver him the stone.

5. Where the court enters a personal decree against the owner and the principal contractor in a suit to enforce a subcontractor's lien, there was no error where the owner held in his hands a sum, owing to the principal contractor, sufficient to discharge the lien.

Appeal from chancery court of Richmond.

Action by James Netherwood against Wirt E. Taylor and John F. Bell. Judgment for complainant, and defendants appeal. Affirmed.

James M. Gregory, for appellants.

D. C. Richardson, for appellee.

RIELY, J. This case involves the validity of the lien of a subcontractor filed under the mechanic's lien law. In the month of Arpil, 1890, John F. Bell entered into a contract with Wirt E. Taylor to build for the latter a dwelling house of stone and brick in the city of Richmond. Bell, who was a carpenter, employed James Netherwood to do the stonework and furnish the necessary materials for the fixed sum of $2,350. Netherwood furnished the materials, and executed the work as required by the plan and specifications, and to the satisfaction of the architect, the general contractor, and the owner. There was no complaint of the manner of its execution. It was only of the delay in doing the work. While the work was being done Netherwood received from Bell the sum of $1,175, and when he had completed his part of the work he applied to Bell for the balance due to him under his contract, and also the amount due for some extra work, amounting in all to $1,220.42. Bell refused payment, because of the loss he alleged that he had sustained by the delay of Netherwood in executing his work. Netherwood thereupon, on the 9th day of June, 1891, and within 30 days after the completion of his work, filed in the clerk's office of the chancery court of the said city his mechanic's lien on the said dwelling house for $1,220.42, with interest thereon from the 22d of May, 1891, and on the same day gave notice thereof to Taylor. On the 7th day of October, 1891, Netherwood instituted suit in the said chancery court against John F. Bell, Wirt E. Taylor, the wife of Taylor, and Charles A Rose, trustee in a deed of trust made by Taylor and wife on the 11th day of June, 1891, to enforce the said lien. John F. Bell and Wirt E. Taylor separately demurred toand answered the bill. The court overruled the demurrer; and, the cause coming on to be heard, on the 3d day of July, 1893, on the bill and answers, the exhibits, and the testimony, and it appearing that Taylor owed Bell, when Netherwood gave Taylor notice of having filed his mechanic's lien, the sum of $1,400, —a sum more than sufficient to pay the claim of Netherwood, —the court held that Netherwood had acquired a valid lien on the said house and lot of land for the sum of $1,220.42, with interest thereon from the 22d day of May, 1891, and decreed that Wirt E. Taylor and John P. Bell pay to James Netherwood the said sum of money, and the costs of the suit. From this decree, and the decree overruling the demurrer, the appeal in this case was taken.

The demurrer and answers assailed the validity of the mechanic's lien on four several grounds: First, because it did not sufficiently describe the property; second, because the statement of the account was not as full as the law required; third, because the verification of the account was insufficient; and, fourth, because the notice given to the owner was defective. Section 2475 of the Code declares what persons shall have a lien on any building or structure, and so much land therewith as shall be necessary for the convenient use and enjoyment of the premises, for performing labor about or furnishing materials for the construction, repair, or improvement of such building or structure. By section 2476 it is provided that a general contractor, in order to perfect such lien, shall, where the building or structure is within the corporate limits of the city of Richmond, file in the clerk's office of the chancery court of the said city "an account showing the amount and character of the work done or the materials furnished, the prices charged therefor, the payments made, if any, and the balance due, verified by the oath of the claimant or his agent, with a statement attached declaring his intention to claim the benefit of said lien, and giving a brief description of the property on which he claims a lien." And by section 2477, a subcontractor, in order to perfect such lien, shall comply with the provisions of section 2476, which are as above quoted, so far as they are material to this controversy, and, in addition, give notice in writing to the owner of the property or his agent of the amount and character of his claim. It is further provided by section 2478 that "no inaccuracy in the account filed, or in the description of the property to be covered by the lien, shall invalidate the lien, If the property can be reasonably identified by the description given, and the account conform substantially to the requirements of the two preceding sections, and is not willfully false."

1. As to the description given of the property. The object of requiring a description is to inform the owner upon which of his property the lien is claimed, and to give no tice thereof to purchasers and creditors, so that they may identify the property, and protect themselves against the lien. "If the property can be reasonably identified by the description given, " It is all that the law requires. It is here described as "that certain three-story building No. —, situate and being in the city of Richmond, Va., on Grace street, between Shafer and Harrison streets, and the lot or piece of ground and curtilage appurtenant to the said building, fronting on said south line of Grace street 49 feet, and running back 156 feet, more or less, * * * of which Wirt E. Taylor is the owner or reputed owner." The description ought to be and Is sufficient to enable any one to identify the premises intended to be covered by the lien. It is full and accurate, and leaves no doubt as to the property meant. It has been held that a claim filed against "a three-storied brick house, situate on the south side of Walnut street, between Eleventh and Twelfth streets, in the city of Philadelphia, of which Harker and Thorn were the owners, or reputed owners" (Harker v. Conrad, 12 Serg. & R. 301); and against a building "situate on the west side of Thirteenth street, between Vine and James streets, in the county of Philadelphia, belonging to or said to belong to Charles Springer, " when in point of fact it was between Callowhill and James, Callowhill street intervening between Vine and James streets (Springer v. Keyser, 6 Whart. 187); and against "the wharf situated on Battery street, between Pacific and Jackson streets in San Francisco" (Hotaling v. Cronise, 2 Cal. 60), —gave a sufficiently accurate description.

2. As to the sufficiency of the account. It is contended that the account filed as the basis of the lien does not conform to the requirements of the law. The account is as follows:

                -------------------------------------------------------------------------------
                |1891.  |                                                              |      |
                |-------|--------------------------------------------------------------|------|
                |       |To stonework done on Mr. Wirt E. Taylor's residence on Grace  |      |
                |May 22.|street, between Shafer and Harrison streets, in the city of   |$2,850|
                |       |Richmond, and materials furnished as per agreement with John  |00    |
                |       |P. Bell, general contractor for said work                     |      |
                |-------|--------------------------------------------------------------|------|
                |-------|--------------------------------------------------------------|------|
                |-------|--------------------------------------------------------------|------|
                |-------|--------------------------------------------------------------|------|
                |-------|--------------------------------------------------------------|------|
                |-------|--------------------------------------------------------------|------|
                |-------|--------------------------------------------------------------|------|
                |Extras:|26 ft. 7 in. curbing at 90 cts                                |23 92 |
                |-------|--------------------------------------------------------------|------|
                |       |21 1/2 ft. tile at $1.00                                      |21 20 |
...

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