Treusch v. Shryock

• Decision Date: 25 March 1879
• Citation: 51 Md. 162
• Parties: CHARLES TREUSCH and MATTHEW O'CONNOR v. T. G. SHRYOCK and GEORGE L. CLARK.
• Court: Maryland Court of Appeals

51 Md. 162

CHARLES TREUSCH and MATTHEW O'CONNOR v. T. G. SHRYOCK and GEORGE L. CLARK.

Court of Appeals of Maryland

March 25, 1879

APPEAL from the Superior Court of Baltimore City.

This was a proceeding in the Court below by the appellees to enforce a mechanic's lien claim filed by them against certain houses in said city, belonging to Treusch, the appellant, and built for him by O'Connor, the co-appellant.

Exceptions.--There were four exceptions taken by the defendant, Treusch, which are sufficiently set forth in the opinion of the Court.

The notice of intention to claim a lien mentioned in the opinion of the Court is as follows:

CHARLES TREUSCH:--Take notice, that we intend to lay a lien against all those five three-story brick dwellings, with two-story back buildings, situated in the city of Baltimore, on the west side of Eden street, beginning about 150 feet south of Baltimore street, running thence southerly, together with the lots of ground and curtilages thereto appendant, for the sum of nine hundred and fifty-three 21/100 dollars, in accordance with the Code of Public General Laws, Art. 61, &c title " Mechanics' Lien," of which houses and lots you are the owner or reputed owner said claim being for lumber furnished in and about the erection and construction of said houses, at the instance and request of Matthew O'Connor, the contractor, within sixty days last past, and the sum of $190.64 1/2 is to be apportioned against each of said houses.

SLINGLUFF & SLINGLUFF,

Atty's for Shryock & Clark.

The lien claim mentioned in the opinion is as follows:

BALTIMORE March 9 th, 1877.

T. J. Shryock & George H. Clark, copartners, trading as Shryock & Clark, lumber merchants, of Baltimore city, State of Maryland, file this their claim of Mechanics' Lien for the sum of $953.21, against all those five three-story brick dwellings and two-story back buildings, situate on the west side of Eden street, having a front each of sixteen feet. The first thereof being one hundred feet south of the south side of East Baltimore street, and the others adjoining in regular order southward. Being each situate on lots laid off sixteen feet front by one hundred and twenty feet deep. Together with the lots of ground and curtilage appendant thereto, which are included in a deed from John B. Wentz, &c., trustees, to Charles Treusch, recorded among the Land Records of Baltimore city, in Liber G. R., No. 750, folio 13, &c.

Beginning for the first thereof on the west side of Eden street one hundred feet south of Baltimore street; thence south on Eden street sixty feet; thence west one hundred and twenty feet;--north sixty feet, east one hundred and twenty feet, to the beginning; subject to a ground-rent of $120.00.

Beginning for the second on the west side of Eden street one hundred and sixty feet south of Baltimore;--thence south twenty feet; thence west one hundred and twenty feet; thence north twenty feet; thence east one hundred and twenty feet, to the beginning: in fee; of which said houses and lots, Charles Treusch is the owner, or reputed owner, and Matthew O'Connor, the contractor; said claim being for work done and materials delivered in and about the erection and construction of said houses, at the special instance and request of the said Matthew O'Connor, within six months last past. The nature of which work and materials appearing from a bill of particulars filed herewith as a part hereof. And the said lienors designate the sum of $190.64 1/2 as the amount claimed on each of said houses; and the said Shryock & Clark claim the full benefit for this claim, of Art. 61 of the Code of Public General Laws, entitled """Mechanics' Lien."

SLINGLUFF & SLINGLUFF, Attorneys.

At the trial the plaintiffs offered the following prayers:

1. That if the jury find from the evidence in the case, that the defendant, O'Connor, was employed by the defendant, Treusch, to build for him the houses in question, and that the defendant, O'Connor, contracted with the plaintiffs to furnish him with the lumber necessary to build said houses, and that the plaintiffs did deliver said lumber to said O'Connor, including the item of the 4th of November, 1876, under said contract, and that notice of the plaintiffs' intention to lay said lien was given to the defendant, Treusch, within sixty days from the date of the last delivery of lumber, and that the contract between the said Treusch and O'Connor has not yet been completed, and that the said Treusch retains in his hands from the amount due by him to O'Connor, the amount due by O'Connor to the plaintiffs, then the plaintiffs are entitled to recover the amount of their lien, with interest from the 9th March, 1877.

2. That if the jury find from the evidence in the case that the defendant, O'Connor, was employed by the defendant, Treusch, to build for him the houses in question, and that the defendant, O'Connor, contracted with the plaintiffs to furnish him the lumber necessary to build said houses, and that the plaintiffs did deliver said lumber to said O'Connor, including the item of the 4th of November, 1876, under said contract, and that notice of the plaintiffs' intention to lay said lien was given to the defendant, Treusch, within sixty days from the date of the last delivery of said lumber, and that the contract between the said Treusch and O'Connor has not yet been completed, then the plaintiffs are entitled to recover the amount of their lien, with interest from the 9th of March, 1877.

And the defendants offered the following prayers:

1. If the jury shall find from the evidence that O'Connor agreed to erect five buildings for Treusch on Eden street, and that he did erect, finish and complete said buildings in all respects, except a balustrade to a stairway in the corner house, and so delivered them to Treusch, and that Treusch accepted the said buildings from O'Connor as a fulfilment of the contract on the part of O'Connor, as far as the said buildings were concerned, then from the time of such delivery by O'Connor and acceptance by Treusch of said five buildings, O'Connor ceased to be the architect, builder and contractor for Treusch, as to said five buildings, and any contract made by said O'Connor for materials after said delivery and acceptance, cannot affect Treusch, as owner of the said buildings.

2. That the jury must exclude from their consideration any item in said bill of particulars of said lien claim, that they may find inserted in said bills, or the subject-matter whereof they may find was delivered at said buildings for any purpose on the part of said Shryock and Clark, or either of them, not ordinarily and usually contemplated by those furnishing materials for buildings, and those receiving the benefit of such materials as owners of such buildings, unless they should find that such extraordinary and unusual purpose was sanctioned by Treusch, as well as O'Connor.

3. If the jury shall find that it was the understanding between O'Connor on the one side, and Shryock and Clark on the other, that O'Connor would buy materials for the five buildings in Eden street, from said Shryock & Clark whenever their materials and prices suited him, and not otherwise, then there was no contract between O'Connor and Shryock and Clark for the purchase of material for said buildings, and each order for material the jury may find, formed a separate and independent contract; and if the jury find the notice of lien offered in evidence, and the service thereof on Treusch, and the date of such service, and find no other notice of lien in this case, then they can find their verdict for plaintiffs for the amount of such items only in said bill of particulars as were furnished for said buildings within sixty days of the service of said notice on Treusch, if they shall find any such items, and if they shall not have excluded them under the first and second prayers.

4. If the jury find consecutive deliveries of materials, at short intervals during the progress of said buildings, they may infer...