Welch v. Humphrey

• Citation: 90 A.2d 686,200 Md. 410
• Decision Date: 15 July 1952
• Docket Number: No. 201,201
• Parties: WELCH v. HUMPHREY.
• Court: Court of Appeals of Maryland

Page 410

200 Md. 410

90 A.2d 686

WELCH v. HUMPHREY.

No. 201.

Court of Appeals of Maryland.

July 15, 1952.

Bernard J. Gallagher, Washington, D. C. (John W. Mitchell, Upper Marlboro, on the brief), for appellant.

Samuel Gordon, Silver Spring (Marvin E. Perlis, Washington, D. C., on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

This suit in equity was brought by James I. Humphrey, trading as Humphrey and Quigg, to annul 28 claims of mechanics' liens filed by Jo Welch, trading as Washington Plumbing and Heating Equipment, against 28 houses in a subdivision known as University Hills in Prince George's County. Complainant had employed Alex Green, trading as Service Engineering Company, to furnish and install the plumbing and heating work in 135 houses being built by complainant in his new development, and Green contracted to purchase the boilers and convectors therefor from claimant. Green paid for the boilers and convectors for 45 houses, but failed to pay for the 28 boilers and 168 convectors for the 28 houses in controversy.

Our Mechanics' Lien Law provides that every building erected and every building repaired, rebuilt or improved to the extent of one-fourth its value in any of the counties shall be subject to a lien for the payment of all debts contracted for work done and materials furnished for or about the same. Code Supp. 1947, art. 63, sec. 1; House v. Fissell, 188 Md. 160, 51 A.2d 669; Harrison v. Stouffer, Md., 65 A.2d 895. Every such claim shall set forth: (1) the name of the claimant and the owner of the building, and also the name of the contractor, architect or builder, if the contract was made with such person; (2) the amount or sum claimed to be due, and the nature or kind of work, or the kind and amount of materials furnished, and the time when the materials were furnished or the work done; and (3) the locality of the building, and the number and size of the stories of the same, or such other matters of description as may be necessary to identify the same. Code 1939, art. 63, sec. 19.

Claimant filed her 28 claims aggregating $9,227.68 on May 11, 1951. Each claim was for $329.56 for the boiler and convectors which she furnished for each house in furtherance of the contract between complainant and Green.

The statute directs that proceedings to recover the amount of any lien shall be by bill in equity, and the same proceedings shall be had as used by the courts of equity to enforce other liens, and the court shall decree a sale and appoint a trustee to make sale thereof and shall apportion the proceeds of such sale among the persons entitled to liens according to their respective rights. Code 1939, art. 63, sec. 24. It was agreed by stipulation of counsel in the Court below that the instant suit should be treated as if it were a suit brought by claimant to enforce her liens. Claimant has appealed here from a decree declaring the 28 claims void.

Complainant does not deny that the boilers and convectors were furnished by claimant. But he contends that her notice of intention to claim mechanics' liens was insufficient. The statute provides that if the contract for furnishing the work or materials has been made with any person except the owner of the lot on which the building may be erected, or his agent, the person doing the work or furnishing the materials shall not be entitled to a lien 'unless, within sixty days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien.' Code 1939, art. 63, sec. 11; Bounds v. Nuttle, 181 Md. 400, 30 A.2d 263.

It has always been held in Maryland that if the notice is given to the owner of the property before the lien claim is filed, it should definitely state the intention of the claimant to claim the lien, and also fully and specifically state the particulars of the claim and the nature and kind of work done or materials furnished, the time when done or furnished, and the amount of the claim. Hess v. Poultney, 10 Md. 257; Thomas v. Barber, 10 Md. 380; Trustees of German Lutheran Evangelical St. Matthew's Congregation v. Heise, 44 Md. 453; Dugan v. Howard, 130 Md. 114, 118, 99 A. 966.

Claimant's notice, sent by her attorney to complainant on February 12, 1951, failed to state the particulars of her claim, the time when the materials were furnished, and the amount of her claim. It also failed to designate the particular houses in which the materials were installed. Her notice read as follows: 'Notice is hereby given you that Washington Plumbing & Heating Equipment has furnished to Alex Green, trading as Service Engineering Company, certain boilers and convectors, and other material, which has been installed in buildings being erected by you in University Hills, Prince George's County, Maryland. These boilers, convectors and other materials have not been paid for to date. This notice is sent to you preliminary to filing mechanics' liens.'

The first Mechanics' Lien Law in Maryland, enacted by the Legislature in March, 1839, authorized liens of mechanics and others on buildings erected within the City of Baltimore. Laws 1838, ch. 205. That Act contained a proviso that if the contract for furnishing the work or materials was made with any person except the owner of the lot upon which the building may be erected, or his agent, the person doing the work or furnishing the materials should not be entitled to a lien 'unless within thirty days after making such contract to furnish work or materials, he shall give notice in writing to such owner or his agent, if resident within the city or county of Baltimore, of the same, and that he intends to claim the benefit of the lien hereby given.'

The next Act, passed in February, 1846, made the law applicable to Carroll, Baltimore and Harford Counties in addition to the City of Baltimore. Laws 1845, ch. 176. That Act required that the notice should be given within sixty days after furnishing the work or materials.

In 1856 the Court of Appeals held in Hess v. Poultney, 10 Md. 257, 268, that the notice to the owner must definitely state the claimant's intention to claim the benefit of the lien, and that the omission of such a statement in the notice is a fatal defect. However, while the notice should unequivocally disclose the claimant's intention to claim a lien, a notice may be sufficient although it does not contain the word 'intention.' Fulton v. Parlett, 104 Md. 62, 66, 64 A. 58.

In 1857 the Court held in Thomas v. Barber, 10 Md. 380, 390, 391, that a notice which merely states an intention to claim a lien for work done or materials furnished in the construction of a building, but does not state the nature and kind of materials, or the amount claimed, is not a sufficient notice under the statute. The Court said that the requirement that such a notice shall be given as will render the law practically useful to the owner imposes no hardship upon a materialman or mechanic, while it secures to an owner what the Legislature evidently intended for his benefit.

First, claimant contends that the Act of 1845 required the person who intends to claim a lien to give the owner notice of two things, the furnishing of the work or materials and the intention to claim a lien, but that the Legislature of 1860 eliminated the first requirement and left only the requirement of notice of intention to claim a lien.

The change in phraseology, upon which claimant relies, was made by Otho Scott and Hiram McCullough, who prepared the Code of 1860. The Constitutional Convention of 1851 had requested the Legislature to appoint two commissioners to revise and codify the laws of the State. Md. Constitution 1851,...