West Virginia Sanitary Engineering Corp. v. Kurish

• Decision Date: 03 March 1953
• Docket Number: No. CC801,CC801
• Citation: 74 S.E.2d 596,137 W.Va. 856
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA SANITARY ENGINEERING CORP. v. KURISH.

Page 596

74 S.E.2d 596

137 W.Va. 856

WEST VIRGINIA SANITARY ENGINEERING CORP. v. KURISH.

No. CC801.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1953.

Decided March 3, 1953.

Syllabus by the Court.

1. A demurrer to a plea of res judicata filed in an action of assumpsit instituted by a general contractor, based upon an alleged breach of a building contract, should be sustained, where the plea alleges only that in a proceeding instituted by the general contractor, against the owner, for the enforcement of a mechanic's lien against the property to which the contract related, the court decreed the lien invalid, and dismissed the proceeding.

2. The statutory remedy provided for the enforcement of mechanics' liens is cumulative.

3. "An issue held to be not properly before the court and left expressly undetermined, may be raised in further proceedings between the parties." Point 6, syllabus, New River & Pocahontas Consolidated Coal Company v. Eary, 115 W.Va. 46 .

Wysong & Wysong, Webster Springs, for plaintiff.

Hoover, Hoover & Bickel, Webster Springs, Wolverton & Callaghan, Richwood, for defendant.

BROWNING, Judge.

The West Virginia Sanitary Engineering Corporation instituted in the Circuit Court of Webster County an action of assumpsit against Bessie E. Kurish, seeking recovery of an amount alleged to be due under the terms of a contract executed between plaintiff and defendant, whereby plaintiff was to construct a certain building upon land owned by defendant. Defendant filed a plea of res judicata and the trial court, having sustained a demurrer to the plea, certified to this Court the following questions:

"1. Does the Amended Plea of Res Judicata state a good defense in bar to the plaintiff's declaration?

"2. Does the decision in the chancery cause referred to and formerly decided operate as res judicata of the issues presented in this law action of assumpsit?

"3. Does the Statute (Code 38-2-19, Michie 3740), and in particular the language, 'shall release such owner from all responsibility and his property from all lien' operate to discharge the debt as well as the lien, when the lien-claimant fails to furnish the itemized statement therein required?"

The plea alleges: That after completing certain work and furnishing certain materials, in accordance with the terms of the contract and within the time allowed by the statute, plaintiff filed a mechanic's lien against Bessie E. Kurish and, within six months from the filing thereof, instituted a chancery cause for the enforcement of the lien; that after the institution of the chancery cause, the owner, pursuant to provisions of Code, 38-2-19, demanded of the contractor an itemized account of the work done and materials furnished; that in a special plea filed in the chancery cause, the owner alleged that the contractor failed to comply with the requirement of the statute, in that the itemized account was not furnished within ten days from the time of receipt of notice of the demand; that the trial court overruled a demurrer to the special plea and certified to the Supreme Court of Appeals certain questions arising upon the pleadings; that the Supreme Court of Appeals refused to docket the case; and that subsequently the trial court adjudged the mechanic's lien invalid because of the failure of the contractor to furnish the notice, and dismissed the chancery cause.

Code, 38-2-19, reads: "The owner may, at any time, by notice in writing, require such subcontractor, laborer, mechanic, workman or other person doing, or causing to be done, work or labor upon such building or other structure or improvement appurtenant thereto, or any such materialman or other person furnishing materials, machinery or other necessary equipment for such work, to file with such owner an itemized account of the work done or caused to be done by such laborer or other person, or of the materials or machinery or other equipment furnished by such materialman or other person for such work, which account shall show the dates upon which such work was done, or such materials were furnished, the price charged therefor, and the nature of such work or materials, and the neglect or failure of any such laborer, mechanic or other person furnishing materials, machinery or other necessary equipment for the doing of the same, so to file such itemized statement with such owner, within ten days after the receipt by him of such written notice so to do, shall release such owner from all responsibility and his property from all lien or charge for all labor done and for all materials furnished by the person so failing to file such required itemized statement, prior to the giving of such notice."

The controlling question raised by the plea of res judicata, filed in the assumpsit action, relates to the effect of the provisions of the quoted statute declaring that failure of the contractor to furnish the itemized statement within ten days after receipt of demand therefor "shall release such owner from all responsibility and his property from all lien or charge for all labor done and for all materials furnished by the person so failing to file such required itemized statement, prior to the giving of such notice." It is the contention of defendant that the provisions have the effect of releasing the owner from all liability, while plaintiff contends that the effect thereof is to release the owner only as to liability created by the mechanics' liens statute, and not as to liability existing by virtue of the building contract. Defendant also contends that, whether or not the statute be interpreted as wholly releasing the owner upon failure to furnish the itemized statement, as required, the question was adjudicated in the chancery proceeding.

Article 2 of Chapter 38 of the Code, as amended, contains the statutory law relating to the creation, perfecting, preserving and enforcement of mechanics' liens. Section 1 thereof provides that a general contractor shall have the right to a mechanic's lien upon a structure erected by him, and upon the interest of the owner in the land upon which the structure is erected, while Section 2 grants such right to a subcontractor. Section 3 grants such right to a materialman who furnishes any materials to the owner, and Section 4 grants such right to a materialman who furnishes materials to a general contractor or subcontractor. Section 5 grants such right to a laborer who performs work for the owner, and Section 6 grants such right to a person who performs labor for a general contractor or a subcontractor. Different methods are provided for the perfecting and preserving of the respective liens. Any lien perfected attaches only against a building or other structure erected, "and upon the interest of the owner thereof in the lot of land whereon the same stands ***." Section 35 empowers the court having jurisdiction, after proper proceedings, to order the sale of the property upon which such lien is found to exist, and to enter a "personal decree in favor of such creditors for the amount of their claims against any party against whom they may be established, and such decree shall have the effect of, and be enforced as, other decrees for money."

With these general principles in mind, we may better understand and apply the provisions of Section 19, quoted above. It will be observed that Section 19 expressly includes a subcontractor, laborer, mechanic, workman and materialman, and expressly requires them to furnish an itemized statement on demand of the owner, while a general contractor is not expressly required to furnish such statement. Though the statute uses, following the specific designations, the words, "other persons", it is observed that those words include only persons doing work or furnishing materials of the class designated. Had the Legislature intended that a general contractor be required to furnish such statement, it would have specifically included the words "general contractor" within the express terms of the language of the section, as it did the word "subcontractor". This meaning seems to be clearly indicated by the Note of the Revisers appended to Section 19, which says: "The word 'subcontractor' is inserted near the beginning of the section. The purpose of the section would seem to apply...