Tygart Valley Brewing Co. v. Vilter Mfg. Co.

• Decision Date: 10 November 1910
• Docket Number: 927.
• Citation: 184 F. 845
• Parties: TYGART VALLEY BREWING CO. v. VILTER MFG. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

184 F. 845

TYGART VALLEY BREWING CO. v. VILTER MFG. CO.

No. 927.

United States Court of Appeals, Fourth Circuit.

November 10, 1910

The appellee, by agreement, dated February 1, 1906, contracted with the appellant to furnish and erect, in the latter's brewery, at Grafton, Taylor county, West Virginia, two large refrigerating machines and an ice plant, at the price of $21,500. After the completion of the work, the appellee pursuant to the laws of the state of West Virginia, on the 22d day of April, 1907, filed in the clerk's office of said county its mechanic's lien, namely, an account purporting to show, among other things, a just and true account of the amount due, after allowing all credits together with a description of the property to be covered therein, the name of its owner, against the plant and premises, and the land used in connection therewith, duly described in said lien. This account was sworn to before a notary public of the state of Wisconsin, and filed within the time prescribed by the statute, that is, within 60 days from the cessation of the labor on and furnishing material in connection with such machinery and ice plant; and the appellee, within the period allowed by the same statute namely, 6 months from the date of the filing of said lien in the clerk's office, filed the bill in this case in the Circuit Court of the United States for the Northern District of West Virginia, for the purpose of enforcing the lien for the balance claimed to be due under the contract. The defendant in the lower court, the appellant here, appeared and demurred to the bill, assigning, among other grounds that the account or lien, which was executed and subscribed to before a notary public of the state of Wisconsin, was not accompanied with the certificate of the clerk, or other officer of a court of record, in said last-named state, under his official seal, verifying the genuineness of the signature of said notary, and showing his authority to administer oaths, as required by the laws of the state of West Virginia. After the filing of the demurrer, the complainant was allowed to file an amended and supplemental bill, setting up the fact, among others, that the notary before whom the account referred to had been verified and filed as a mechanic's lien was authorized to administer oaths, and that his signature was genuine, and duly exhibited with said amended and supplemental bill a formal certificate dated the 12th day of August, 1907, from Fred. W. Cords, clerk of the circuit court of the county of Milwaukee and state of Wisconsin, under the seal of said court, showing these facts. This certificate was not annexed to and made a part of said account, nor did it purport to have been issued in relation thereto, but merely certified that the notary in question, whose name appeared at the top of the certificate, was duly commissioned and qualified, and that he was familiar with and verily believed his signature to be genuine. This certificate was not filed in the office of the clerk of the county court of Taylor county, W. Va., before or at the time of the filing of the amended and supplemental bill, or within 60 days from the completion of the work for which the lien is claimed. To this amended and supplemental bill a demurrer was also filed, assigning the insufficiency of the certificate dated 12th of August, 1907, unannexed to the claim for lien, and unrecorded therewith, to cure the defect in the claim for lien as originally filed. This demurrer was overruled, and thereupon appellant, the defendant below, answered the original and amended and supplemental bills, setting up the defects aforesaid in the complainant's lien, denying that a legal lien had been perfected, and made claim for alleged damages caused by delay in the erection of the machinery and plant. Subsequently, upon the motion of the complainant, leave was granted it to withdraw from the files the certificate of the clerk of the circuit court of Milwaukee county aforesaid, in order that the same might be filed in the office of the clerk of the county court of Taylor county, W. Va., and the same was withdrawn and recorded in said court in its record book of mechanics' liens; and thereupon, by leave of court, a second amended and supplemental bill was filed, setting up the withdrawal and recordation of such certificate and the contention that said lien was thereby validated, to which a demurrer was interposed, again assailing the validity of the lien, and the same was overruled by the court. The defendant then answered the second amended and supplemental bill. Proofs were duly taken, and the cause submitted upon its merits; and the court, on the 3d day of April, 1909, filed its written opinion, reaffirmed its ruling on the demurrers, rejected the defendant's counterclaim, and found that the complainant on such lien was entitled to recover a balance of $8,294.39, for which a decree was, on the 20th day of April, 1909, duly entered, and the plant and premises ordered to be sold, from which decree this appeal was taken.

John Bassel (Fred. T. Martin, on the brief), for appellant.

C. F. Fawsett, for appellee.

Before GOFF and PRITCHARD, Circuit Judges, and WADDILL, District judge.

WADDILL District Judge (after stating the facts as above).

The assignments of error raise but two questions: First, the validity of the lien, because of the defective authentication thereof; and, second, the propriety of the rejection of the counterclaim for liquidated damages.

Considering the sufficiency of the certificate to the mechanic's lien under the West Virginia statute, the provisions of the same, so far as material, will be found in Code W.Va. c. 75, Sec. 2 et seq., especially sections 4, 5, 10, and 11. Section 2 gives the lien. Section 4 provides how it shall be claimed, and is as follows:

'Sec. 4. Every lien provided for in the second and third sections shall be discharged unless the person desiring to avail himself thereof shall, within sixty days after he ceases to labor on, or furnish material or machinery for such building or other structure, file with the clerk of the county court of the county, in which the same is situated, a just and true account of the amount due him, after allowing all credits, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which account shall be sworn to by the person claiming the lien, or some person in his behalf.'

Section 5 provides how, when, and where the lien must be recorded; section 10, within what time the bill must be filed for its enforcement, and the method of procedure thereunder; and section 11, the time within which such suit shall be instituted, and the effect of failure so to do. Code W.Va. 1906, c. 130, Sec. 31, provides how affidavits before officials of another state, or nonresident officials, must be authenticated, viz.:

'An affidavit may also be made before any officer of another state or country authorized by its laws to administer an oath, and shall be deemed duly authenticated if it be subscribed by such officer, and there be annexed to it a certificate of the clerk or other officer of a court of record of such state or country, under an official seal, verifying the genuineness of the signature of the first mentioned officer, and his authority to administer an oath.'

The question here presented involves the true interpretation to be given to the statutes of the state of West Virginia, and this court, where those statutes have been interpreted by the court of last resort of the state, will follow that construction, certainly as respects the meaning of its recordation acts and what is necessary to be done to secure liens thereunder. According to our view of those decisions, the precise question here involved has already been passed upon, and we have heretofore, in another case before us, followed that decision. Lockhead v. Berkeley Springs W. & Imp. Co., 40 W.Va. 553, 21 S.E. 1031, was, as here, a suit filed for the enforcement of an alleged mechanic's lien, which was assailed because of the lack of due authentication of the certificate of the officer before whom the account was sworn to, and the court, among other things, said:

'Here the statute prescribes a method of giving notice to all whom it may concern, by requiring it to be in writing, and made matter of record, so that the lien created may not be secret, and the inherent nature of the transaction necessarily implies that such method is intended to be exclusive. Where a statute declares that the notice to create a lien shall be verified before filing, it is essential to the creation of the lien that it should be sworn to in the manner prescribed. The want of verification, or of a sufficient verification, is a defect which goes to the whole claim and cannot be amended. ' A claim for a mechanic's lien, when filed, should have been verified; and it should appear upon its face to have been verified, before it can be made the basis of a proceeding to enforce the claim based upon it. If any special form of verification is prescribed, it must be followed.' See Phil. Mech. Liens (3d Ed.) Secs. 366, 366a, citing Hallagan v. Herbert, 2 Daly (N.Y.) 253; Lindsay v. Huth, 74 Mich. 712, 42 N.W. 358. In the latter case the notice of lien filed had no verification of any kind. The verification of the demand contemplated by the statute is an oath or affirmation taken and administered by and before an officer having authority by law to administer and certify oaths and affirmations. 2 Jones, Liens, Sec. 1451. A verification of the claim substantially as required by

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