Adkins & Douglas Co. v. Webb

Digges, J., delivered the opinion of the Court. This is a mechanic’s lien case. The appellant furnished certain materials used in the construction of a house built upon a lot of ground located in the town of Preston, Caroline County, Md., which land was the fee simple property of the defendant Mary R. Webb. The materials were furnished between March 18th, 1921, and September 8th of the same year.

The total amount due for the materials furnished was $2,062.82, of which $1,250 was paid, leaving a balance due and unpaid of $812.82. On February 17th, 1922, the appellant filed and recorded a mechanic’s lien in the Circuit Court for Caroline County for that amount, for materials furnished George C. Webb and Mary R. Webb, the owners or reputed owners of the house, within six months last past. There was no notice of an intention to file a lien given, either verbally or in writing, to Dr. Webb or Mrs. Webb. The bill in this case was filed January 22nd, 1927, for the purpose of enforcing the payment of the lien.

Separate answers to the bill were filed by Dr. and Mrs. Webb, duly sworn to, in which it was alleged that neither of the parties had received any notice of the intention of the appellant to file a lien, and further alleged that Mrs. Webb “never made a contract, directly or indirectly, in person nor by agent, for the furnishing of any part of the material set forth in the plaintiff’s bill of complaint, nor in the purported lien thereto attached.” The language quoted is taken from the answer of Mrs. Webb, while the husband’s answer alleges that “to his knowledge the said Mary R. Webb therein mentioned had nothing to do with said contract or the erection of the building therein mentioned.” Both answers admit the ownership by the wife -of the land upon which the building was erected. Testimony was taken before an examiner, and upon a hearing the chan ⁵⁷⁴ cellor passed a decree dismissing the bill. It is from this, decree the appeal is prosecuted. The ultimate question presented by the appeal is: Was Dr. Webb the agent of his wife, Mary B. Webb, the owner of the land upon which the building was erected and in the construction of which the materials furnished were used.

There-is no dispute that she owned the land, nor that her husband actually ordered the materials in question, either in person or through a carpenter who had charge of the construction of' the building. It is also undisputed that the appellant’s books-of account showed that the cost of the materials was charged to Dr. Webb alone. We have, then, a case of an alleged mechanic’s lien for materials furnished for the construction of a building on the land of a married woman, which was ordered personally by the husband; no notice having been given by the materialman to either the husband or wife of' intention to claim a lien. Mechanic’s liens are purely creatures of statute; and,, in order to obtain a lien, the mode prescribed by statute must-be substantially complied with.

As was said in Sodini v. Winter, 32 Md. 133 : “This peculiar lien does not originate in contract; it is purely a creature of positive statutory enactment, to be maintained and enforced to the extent and in the mode which the statute prescribes.” Section 10, article-63 of the Code, provides: “Where a building shall be erected on a lot of ground belonging to a married woman by her husband or some person by him employed the said lien shall not attach unless notice thereof be given to such married woman in writing within sixty days after doing such work or furnishing such materials, or both, as the case may be.” Section 11 of the same article provides: “If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected,, or his agent, the person so doing work or furnishing materials,, or both, shall not be entitled to a lien unless, within sixty days, after furnishing the same, he or his agent shall give notice in ⁵⁷⁵ writing to such owner or agent, if resident within the city or county, of his intention to claim such lien.” These sections have been before this court for construction on a number of occasions: and as a result of these decisions, it seems now to be firmly settled in this state that, in order to obtain a mechanic’s lien against property belonging to a married women, where the contract for the building has been made by her husband, it is necessary that the parties seeking the lien notify such manned woman in writing within sixty days from the last date upon which materials were furnished or work done, except in cases where it is shown that the husband acted as the agent for the wife. Conway v. Crook, 66 Md. 292 , 7 A. 402 ; Rimmey v. Getterman, 63 Md. 431 ; Jarden v. Pumphrey, 36 Md. 363 ; Frazee v. Frazee, 79 Md. 30 , 28 A. 1105 ; Fulton v. Parlett, 104 Md. 67 , 64 A. 58 . In cases where the agency is established, no notice is necessary, because under the provisions of section 11, if the contract for doing the work or furnishing the materials is made directly with the owner or his agent, no notice is required, for the reason that the owner has knowledge of the materials furnished or work done, which has not been paid for; and in like manner, if the owner’s agent has such knowledge, it is equivalent to knowledge of the owner. Richardson v. Saltz, 127 Md. 383 , 96 A. 524, 525 ; Jarden v. Pumphrey, supra; Weber v. Weatherby, 34 Md. 656 ; Real Estate Co. v. Phillips, 90 Md. 524 , 45 A. 174, 175 ; Shryock v. Hensel, 95 Md. 624 , 53 A. 412 .

See also Blake v. Pitcher, 46 Md. 453 ; Wilhelm v. Roe, 158 Md. 615 , 149 A. 438 . The contention of the appellees is that, even if it be conceded that the husband is the agent of the wife in this case, nevertheless the statute requires notice of intention to claim a lien to be served either on the agent or on the principal; and, from the opinion of the chancellor, it is apparent that this view was accepted by him, because, without deciding that the husband was or was not the agent of the wife, the basis of his decree is this statement in his opinion: “The •complainant gave no notice under either section referred to, and as such notice is essential to the creation of a mechanic’s ⁵⁷⁶ lien, the claim of a lien in this case cannot be enforced and the bill will have to be dismissed.” We think this view is erroneous, for the reason that, when it is once established that the husband is the agent of the' wife, the provisions of section 10 are removed from further-consideration, and the question then is whether under the-provisions of section 11 any notice at all is required. We do-not think it is. The plain and unambiguous language of this section is that the notice necessary to create a lien is only-required in cases where the contract for the work or materials is with some person other than the owner or the owner’s, agent.

In other words, paraphrasing this section, it means, that, if the contract for the work or furnishing the materials, is with the owner or the owner’s agent, then no notice is necessary. This construction is irresistible, because if the-contract is made with the owner or his agent, the purpose sought to be accomplished by requiring notice ceases to exist,, and necessarily it follows that no notice is required. The underlying purpose of the requirement of notice is to acquaint an owner who has had no contractual relation, either directly or through his agent, with the party furnishing the material or doing the work, with the fact that the materials or work have not been paid for, and that therefore the owner’s property will be subjected to a lien, the enforcement of which will satisfy the lien claimants. In Real Estate Co. v. Phillips, supra, in which the main point to be determined was the propriety of an amendment to the proceedings, the court said: “It is conceded that no-notice was given, and it is clear that, if the amendment which was allowed by the court is effective, no such notice was necessary, for the evident reason that, if Johns and Lechler were both builders and owners, this would not be a case within section 11 of article 63, requiring such notice to be-given.” As we have stated, it is apparent that the chancellor passed the decree dismissing the bill of complaint because in his. judgment notice to the wife of intention to claim the lien was required.

In this he was in error. But it does not follow ⁵⁷⁷ that the decree should be reversed for that error, if upon examination the record does not disclose that the hus&and was the agent of the wife. The burden of showing such agency is upon the appellant, and in our judgment the record does not show that it has met this burden. It is firmly established that the existence of the relationship of husband and wife, standing alone, is not sufficient to create agency on the part of the husband in respect to the wife’s property. 20 Amer. & Eng.

Encyc. 327; Abrams v. Eckenrode, 136 Md. 244 , 110 A. 468 ; Hartman v. Thompson, 104 Md. 408 , 65 A. 117 ; 13 R. C. L. 1168. And knowledge by the wife of the husband’s intention to construct a building on her land, together with her failure to interpose objection, are not sufficient circumstances to constitute agency. Kvedera v. Mondravitzky, 145 Md. 260 , 125 A. 591, 593 ; 13 R. C. L. 1172. In the Kvedera case, Judge Pattison, speaking for this court, after quoting from 13 B. G. L. 1125, 1172, said: “It will therefore be seen from the above-mentioned authority, and the cases there cited, that the wife’s liability upon the contract of her husband, in such cases, depends upon the question of agency.

If he acts with her authority, either expressly or impliedly conferred upon him, his acts are binding upon her; and ‘she may also render his unauthorized acts as her agent binding on her by subsequent ratification which under the principles of agency is equivalent to original authority.’ ” That was a case of tenants by the entirety, in which the husband made the contract for improvements on the common property. Upon the failure of payment, the husband and wife were jointly sued. The evidence was to the effect that the wife made all the payments that were made for the work done and material furnished under the contract; that she took an active interest in the work as it progressed, giving instructions in connection therewith, and was present on one or more occasions when the contractor met with her husband and others to discuss different phases of the transaction; that on such occasions she expressed her ⁵⁷⁸ self freely and positively as to the failures and omissions of the plaintiff in his performance of the contract, therefore showing a full knowledge of the terms of the contract; and it was admitted by her that she was familiar with the preliminary contract, which she said was read over at the time it was made and executed, prior to the execution of the formal contract, and that she knew of the latter contract when she took the papers to an attorney and showed it to him. After reciting these facts, the court said: “This evidence, we think, was legally sufficient to go to the jury, as tending to show ratification, if not authorization, of the contract made by her husband with the appellee.” By the plaintiff’s prayer the “jury were told that, ‘if they find from the evidence that the plaintiff entered into a written contract with the defendant Martin Kvedera, whereby the plaintiff was to construct certain improvements on the property owned by Martin Kvedera and Margaret Kvedera, his wife, as tenants by the entireties; and if they further find that