Vinton v. Builders' & Manufacturers' Ass'n

• Decision Date: 23 November 1886
• Citation: 9 N.E. 177,109 Ind. 351
• Parties: Vinton v. Builders' & Manufacturers' Ass'n and others.
• Court: Indiana Supreme Court

109 Ind. 351

9 N.E. 177

Vinton

v.Builders' & Manufacturers' Ass'n and others.¹

Supreme Court of Indiana.

November 23, 1886.

Appeal from superior court, Marion county.

Claypool & Ketcham, for appellant. E. A. Parker and L. B. Swift, for appellees.

Howk, J.

In their brief of this cause, appellant's learned counsel say: “There is but one question presented by the record, viz.: What is the proper construction to be given to section 5 of the act of March 6, 1883, in regard to mechanics' liens?” The act referred to by counsel is entitled, “An act concerning liens of mechanics, laborers, and material-men,” was approved March 6, 1883, and, by virtue of an emergency declared, was in force from and after its passage. Acts 1883, p. 140 et seq. Section 5 of such acts reads as follows: “To enable the mechanics, or other persons furnishing material or performing labor, as above provided, to a contractor, to acquire such lien, he must, at or before the time he furnishes the material or performs the labor, notify the owner or his agent that he is furnishing the materials or performing the work for the contractor.”

In our decision of this cause, we shall confine our opinion strictly to the consideration of the question, as above stated by appellant's counsel. This question is fairly presented for our decision by the record of this cause and the error assigned thereon. Without stating the record, or any part thereof, it will suffice to say that it became a question in the cause below whether or not the appellant, as owner, was entitled, under the provisions of section 5, above quoted, to notice in writing from the persons who were seeking to enforce alleged liens against her or her property, for materials furnished or labor performed to or for her contractor; or whether or not a verbal notice merely from such persons to her or her agent was a sufficient compliance with the requirements of such section of the statute to enable such persons to acquire the lien mentioned therein. The court at special term held, and the general term affirmed such decision, that mechanics or other persons are not required, under such section 5 of the statute, to notify the owner or his agent in writing, but that a verbal notification to the effect specified therein, given at or before the time mentioned to the owner or his agent, will be a sufficient compliance with such section of the statute to enable such mechanics or other persons to acquire the lien provided for therein. If this constructionof section 5, above quoted, be the correct construction, the judgment below must be affirmed. If, however, the true construction of such section 5 required that appellant or her agent should have been notified in writing, then the judgment below must be reversed.

We are of opinion that the...