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

• Decision Date: 02 April 1909
• Citation: 168 F. 1002
• Parties: VILTER MFG. CO. v. TYGART'S VALLEY BREWING CO.
• Court: U.S. Court of Appeals — Fourth Circuit

168 F. 1002

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

United States Circuit Court, N.D. West Virginia.

April 2, 1909

Winkler Flanders, Bottum & Fawsett and Cunningham & Stallings, for plaintiff.

F. T Martin, for defendant.

DAYTON District Judge.

This suit is brought to enforce an alleged mechanics' lien for the furnishing and erection of two 60-ton refrigerating machines and one 25-ton ice plant under contract. The contract required the plaintiff to furnish and erect these machines and plant in buildings and upon foundations furnished by the defendant, who was also to do all necessary masonry and carpenter work. The first machine was to be completed on the 5th day of June, 1906, and the second on or before the 1st day of July following, provided that the foundation and buildings were ready to receive the machines immediately upon arrival, and other delays were not caused by the defendant. In event of such delays a corresponding extension of time was to be given. In case either plant was not completed, under these conditions, within the time provided, the plaintiff was to allow 'the sum of $25 per day for each and every day beyond the dates fixed for the completion of either or both plants, which sum is to be considered as full compensation for such delay.'

The defenses relied upon are two: First. That the plaintiff's claim for a lien does not comply with the statute, because the certificate of the nonresident notary, who took the affidavit to the declaration of account and lien, was not authenticated by a clerk or other officer of a court of record, and the lien, therefore, was not properly recorded. Second. That the work was not done by the plaintiff within the required time, and that the defendant is entitled to offset the liquidated damages at the rate of $25 per day, as provided by the contract. The first defense was made by demurrer, and has already been passed upon by the overruling of the same; but as no written opinion was filed at the time and this defense is still relied upon in the answer, a brief statement of the reasons for rejecting it may now be made.

In 1895 the Supreme Court of Appeals, in Lockhead v. Berkeley Springs Water Works & Improvement Co., 40 W.Va. 553, 21 S.E. 1031, held that, where the affidavit for a mechanic's lien is made before an officer of another state, it is not duly authenticated for record until subscribed by such officer and certified by the clerk or other officer of court of record of such state, under official seal, as required by Code 1899, c. 130, Sec. 31 (Code 1906, Sec. 3953). Here the affidavit was made before and duly subscribed by an officer of another state; but no certificate of the clerk or other officer of a court of record of such other state, under official seal, was attached thereto. Under this decision alone this technical defense is based. This decision was rendered some 14 years ago, when the trend of the courts of this state was to require strict compliance with the technical requirements of the mechanic's lien law. This policy of the courts has been entirely changed, and in West Virginia Building Co v. Saucer, 45 W.Va. 483, 31 S.E. 965, 72 Am.St.Rep. 822, and other similar cases, it has been held that, where a builder has completed his work according to contract in all material features, his mechanic's lien...