Thorn v. Barringer
| Decision Date | 03 February 1914 |
| Parties | THORN v. BARRINGER ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 20, 1914.
Rehearing Denied May 21, 1914.
Syllabus by the Court.
An agreement to furnish all the materials necessary to the completion of a building, without defining what they shall be and the exact price of the same, under which the materials used in the building are ordered and furnished at different times, constitutes when executed a continuous and entire contract on which a mechanic's lien for the whole may be claimed within the statutory time after the last item is furnished, though more than sixty days elapsed between items of the account.
A mechanic's lien attaches and dates from the time the first work is done or the first materials are furnished under the contract giving rise to it.
One purchasing premises on which buildings are in the process of erection must make inquiry and take notice of any mechanic's lien right that has attached prior to his purchase.
A conveyance of the property, or an incumbrance placed thereon after a mechanic's lien attaches by a beginning of performance under the contract, does not cut off or affect the right to the mechanic's lien for the whole, though a part of the execution of the contract is before and a part after the time of the conveyance or incumbrance.
When a mechanic's lien arises and attaches by reason of the beginning of performance under a contract with the owner, the lien is properly filed under Code 1906, ch. 75, sec. 2 though before the time the contract is completed and the lien is filed the owner who made the contract has conveyed the property to another.
Appeal from Circuit Court, Jefferson County.
Bill by H. P. Thorn against D. K. Barringer and others. Decree for plaintiff, and defendant R. E. Heatwole appeals. Affirmed.
Chas E. Williams, Faulkner, Walker & Woods, and J. O. Henson, all of Martinsburg, for appellant.
H. H Emmert, of Martinsburg, for appellee.
The decree complained of is one enforcing a mechanic's lien. Barringer, himself a contractor and builder, began the erection of a house on a lot owned by him. Some time thereafter, he contracted in a general way with Thorn, a material man, to be furnished with all materials necessary to be used in the building. Barringer under the contract ordered from Thorn many shipments of materials which went into the building. When the main part of the house was nearly done and after a cessation of work thereon for several weeks, Barringer conveyed the property to Heatwole. Under a contract with the grantee, Barringer went on with the work of completing the main part of the house and erecting a wing to it, still ordering the materials from Thorn. The deed from Barringer to Heatwole was recorded, but Thorn had no actual notice of the change of ownership, even if notice in that regard is material. Barringer did not pay for the materials which he ordered under the contract and used in the erection of the house. Thorn proceeded to protect himself by taking out a mechanic's lien, treating Barringer as the owner, since the contract under which the materials were furnished was made with him as such. The mechanic's lien was perfected under Code 1906, ch. 75, sec. 2, and not under section 3 of that chapter. In other words, Thorn perfected his lien as if Barringer was still the owner.
Heatwole, on the day that the property was conveyed to him, executed a deed of trust thereon to secure a loan from Williams, and the same was at once duly recorded. So we have observed that during the process of the execution of Thorn's contract with the owner for furnishing the materials necessary to be used in the house, the property was conveyed away by the owner and was incumbered by the grantee.
In this suit by Thorn to enforce the lien, the purchaser, the deed of trust holder, and the trustee in the deed of trust were of course joined with Barringer as parties. The circuit court decreed that Thorn's lien was a valid one against the property for the amount due him for all materials furnished under the contract and used in the building, notwithstanding some of them were furnished after the time of the conveyance and incumbrance. The lien was given priority over the conveyance and the deed of trust. From the decree, Heatwole, the purchaser, has appealed.
Appellant maintains that the materials were not furnished under one continuous contract; that the materials furnished Barringer while he was actually the owner constituted a claim for a distinct lien under Code 1906, ch. 75, sec. 2, the statutory time for the filing of which had expired at the time of the conveyance; and that the materials furnished Barringer after he became a contractor under the vendee constituted a claim for a separate lien under Code 1906, ch. 75, sec. 3, requiring notice to appellant as owner within thirty-five days after Thorn's ceasing to furnish the materials, which was not given. Thus appellant maintains that there is no valid lien against the property.
The court below evidently viewed the contract between Thorn and Barringer as a continuous one upon which a valid lien could be claimed for all the materials furnished thereunder, as an entirety. The evidence justified such a view. Though the contract did not define just what materials should be furnished or the exact price of the same, yet it contemplated one settlement for all materials that Barringer should order from Thorn and use in the building under process of erection at the time. It was not limited to any particular part of the building. It was broad enough to embrace the furnishing of any materials that might be necessary in making ever so large a house of the incompleted building. As long as Barringer continued to order materials from Thorn for use in the building, the contract continued, forming in the end an entire one. "When work or material is done or...
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