Thomas v. Turner

• Decision Date: 13 June 1860
• Citation: 16 Md. 105
• Parties: JOHN H. THOMAS v. JOHN C. TURNER and CHAS. F. YARDLEY.
• Court: Maryland Court of Appeals

16 Md. 105

JOHN H. THOMAS v. JOHN C. TURNER and CHAS. F. YARDLEY.

Court of Appeals of Maryland.

June 13, 1860

The 5th sec. of the Mechanics' Lien Law of 1845, ch. 287 prevents the issuing of a scire facias to enforce the lien, in cases where a credit is given or notes or other securities received, until the expiration of the credit agreed upon.

The defence under this section, that the scire facias issued before the expiration of the credit, is as available to any one whose property is sought to be charged, as to the party with whom the contract for the credit is made.

APPEAL from the Superior Court of Baltimore city.

Scire facias under the Mechanics' Lien Laws sued out by the appellees on the 23rd of December 1854, to enforce a claim of $690.10, filed on the 22nd of December 1854, against two houses and lots on McCullough street, in the city of Baltimore, for lumber furnished at different periods, between the 10th of May and the 9th of November 1854, for the construction of the houses, to Jacob F. Kridler, as the architect, builder and owner, or reputed owner thereof. But one claim was filed, and one writ of scire facias issued, against the two, the writ, however, specifying the amount claimed on each house. On the return of the writ, the appellant appeared, claiming to be owner of one of the houses, and pleaded that the sum claimed was not due, that Kridler was not the owner, nor the agent of the owner, of the building or lot at the time the materials were furnished, or when the lien claim was filed or the writ issued, that the contract for furnishing the materials was made with an architect, builder and other person than the owner, and the plaintiffs did not give notice of their intention to claim the benefit of the lien as required in such case by the Act of Assembly, and that no sufficient claim of lien was made and filed within the time required by law. The case was tried upon issues joined on these pleas.

Exception. It was proved, among other matters, that, on the 18th of Sept. 1854, Kridler gave to the plaintiffs his note for $824.57, at four months, in settlement of his account with them, and embracing all the items in the lien claim up to the date of the note; that for several years prior to the time set forth in the lien account, he had been dealing largely with the plaintiffs, and was in high credit with them, and they would have furnished him without security, on his personal credit, any reasonable quantity of lumber, and had, in fact, loaned him money from time to time without security; that he had been for a number of years one of the largest builders in the city of Baltimore, and had built most of the houses in that part of the city where the one in controversy is situated; that he enjoyed excellent credit down to the close of November 1854, when he absconded to parts unknown, having previously committed several forgeries upon persons in the city of Baltimore; and that it was the customary mode of dealing and settlement between the plaintiffs and Kridler, for the latter to give them his note at four months, at the beginning of January and July in each year, for all the lumber furnished by the plaintiffs to him during the preceding six months.

It is not necessary to state the other proof, or the questions raised in the case, by the several prayers offered by the defendant. His eighth prayer denied the right of the plaintiffs to recover in this proceeding any of the items of their lien claim which were included in the note of the 18th of September 1854, provided the jury find that on that day the plaintiffs had a settlement with Kridler for lumber theretofore furnished by them to him, and then agreed to give, and did give him a credit of four months for the amount then due therefor, and agreed to receive, and did receive from him, his promissory note to their order, for this amount, at four months from the 18th of September 1854, and give him their receipt therefor, offered in evidence.

The court (LEE, J.) rejected this prayer, and to this ruling the defendant excepted, and the verdict and judgment being against him, appealed.

The cause was argued before ECCLESTON, TUCK and BARTOL, J.

S Teackle Wallis, for the appellant:

If the lien existed, it would seem too clear for argument that the right to issue a scire facias for the enforcement of it was suspended by the settlement of the 18th of September until the expiration of the credit then agreed on, and the maturity of the note then given. The taking of a promissory note for an open account, even without an express agreement, suspends the right to sue until the maturity of the note. 2 G. & J., 493, Glenn vs. Smith. 2 Gill, 462, Phelan & Bogue vs. Crosby. 1 Md. Rep., 115, Mudd vs. Harper. Ibid., 514, Hunter vs. Van Bomhorst. A fortiori, when there is an express agreement for a credit, as is the hypothesis of the eighth prayer, is the right to sue suspended until the credit agreed on has expired. The 5th sec. of the Act of 1845, ch. 287, expressly enacts that the effect of granting a credit or receiving notes " shall be to prevent the issuing of a scire facias or other proceedings to enforce the said lien until the expiration of the credit agreed upon." The credit of four months agreed upon at that settlement did not expire until the 21st of January 1855, and this writ issued a month before that time, and of course was premature. The eighth prayer ought, therefore, to have been granted. The fact of Kridler's having absconded can certainly make no difference. The appellant is still entitled to the stipulated credit. It suspends by Act of Assembly, under all circumstances and in favor of all parties interested, the right to issue the scire facias. Nor is there any proof that this credit was fraudulently obtained, if that could avail the...