Blenard v. Blenard

⁵⁵¹ Markell, J., delivered the opinion of the Court. On June 8,1936, Marie E. Blenard (plaintiff, appellee) and Lewis F. Blenard, Jr. (defendant, appellee) were married. On February 27, 1940, they acquired as tenants by the entireties, a lot on Salem Avenue in Hagerstown on which to erect a house. He was then employed at the A. & P. store, later on the Hagerstown police force.

She was employed, until some time in 1942, at Montgomery Ward’s. His father, Lewis F. Blenard, Sr., (defendant, appellant) owns and works a 43-acre farm on the Hopewell Road several miles outside Hagerstown. In 1940 he was the only man doing the farm work; he was then 60 years old. He lived on the farm with his wife, his daughter and her husband and their 12 year old son.

The Salem Avenue house is a one and one-half story stone dwelling with modern conveniences. Excavation for the foundation was begun in April, 1940, and completed in October or November. Construction of the foundation was then begun and was completed in the spring of 1941. In September or October, 1941, the husband and wife moved into the house.

Almost all the work done on the house was done before 1943. The house, however, was still unfinished when the marriage collapsed. Marital trouble arose about October 1, 1943, and resulted in a divorce, granted on the wife’s cross-bill in Washington County on July 3, 1944. When the husband and wife undertook the erection of the house, they had little money.

Her father paid $500 for the lot—or an adjoining lot acquired by them in April, 1943, or both lots. He also gave them the posts for the back porch. A friend of theirs, Roy Smith, did some work, without charge, in the erection of the house. The husband himself, and sometimes the wife, when they had free time, worked on the house.

Most of the work was done, and almost all the stone was furnished by his father, who was paid nothing. What stone was not furnished by the father was given to them. On April 14, 1941, the husband and wife borrowed $1,000 on a mortgage, and on June 23, 1941, $500 on a second ⁵⁵² mortgage, from Mrs. Emma J. Blenard (defendant, appellee), a sister-in-law. of Blenard,- Sr., and an aunt (by marriage) of Blenard, Jr. Mrs. Blenard lives near the farm and visits there almost every day. Later the husband and wife borrowed $450 from an uncle of the husband, all of which, except $100, was repaid out of their joint bank account.

In 1940 Blenard, Jr., and his wife frequently went to the farm for dinner or supper, principally at week-ends. Soon after they acquired the lot they were at the farm, and the house was discussed. Blenard, Sr., said he would furnish stone and such labor as he could to build the house. On subsequent occasions he repeated this statement.

On the first occasion, Blenard, Sr. and Jr., testify the son told the father he would pay him 40 cents an hour for labor and $1.25 a ton for stone, the father “to keep track of his time.” The son says, “I * * * told him I did not know when I would pay him but I would pay him some day.” The father says the understanding was, “He was to pay me when he had the money to pay me.” “I insisted on helping him, he asked me, I said I would help him and he could pay me whenever he seen fit, later on when my work was done.” “I was the last one, I was to wait for mine until the rest was off of his hands.” The father says this was the only time he and his son discussed this agreement. He says, at the time of the second mortgage the son, in the presence of Mrs. Blenard, Sr., and Mrs. Emma J. Blenard, “said he had to borrow $500 more or more than that if I would not help him out or won’t wait for mine and I agreed to wait on mine, do what I could to help him out so he would .not have to borrow any more money.” The son testifies to the same effect; Mrs. Blenard, Sr., does not remember what the original conversation between father and son was, and neither she nor Mrs. Emma J. Blenard was asked about any conversation concerning the second mortgage. Blenard, Jr., says his wife was not in the room during either of these conversations, and that he never told her ⁵⁵³ what he had agreed to pay his father for labor or stone. He says he told her, before the first conversation, “we could not get my daddy unless we paid him,” “I would get dad and pay him but possibly not pay him as much as other people.” The father says he did not have any dealings with her.

She says she never discussed, with Blenard, Sr., or Jr., anything about the compensation to be paid the father or the price to be paid him for any stone, and the father never said anything to her about being paid for his work; he never asked them for any pay in any way. She would have been willing to pay him, if they had had an agreement. If he had said he wanted to be paid, he would have been paid. Her husband never told her that his father was to be paid but would be postponed because of money shortage until the other workmen were paid.

She first learned of the existence of the father’s claim against the property several months before the divorce; her husband then told her that if she did not accept an offer of settlement he made her, she would not have anything because he was going to get his father to file a mechanics’ lien against the house. The husband denies any such statement. Both Blenards, Sr. and Jr., deny that the son instigated the filing of a mechanics’ lien claim by the father. On January 26, 1944, Blenard, Sr., filed a mechanics’ lien claim against the house and lot for $2,660, “due and payable to him for work and labor done and materials furnished in, upon and about said house within six months last past for Lewis F. Blenard, Jr., and Marie Elizabeth Blenard, his wife, the owners or reputed owners of said house and lot, the nature and details of which work, labor and materials are particularly set out in the subjoined itemized account filed herewith as part of this claim.” The account was for “The following labor and materials furnished to, for, in, upon and about the building known as 1304 Salem Avenue from 1939 to September 1, 1943: ⁵⁵⁴ “585 days of labor at $4.00 per day......$2340.00 “ 20 days use of two horse team at $2.00 per day ........................ 40.00 “224 tons of stone at $1.25 per ton........ 280.00 Total ......................... $2660.00” On July 14, 1944, Marie E. Blenard filed a bill against the Blenards, Sr. and Jr., and Mrs. Emma J. Blenard, alleging that the Blenards, Sr. and Jr., “conspired, connived and schemed together ta file the fictitious Mechanics’ Lien in an attempt to deprive the complainant and others of their lawful rights and interest in and to the aforesaid property,” that the work done or materials furnished by Blenard, Sr., were furnished as a gratuity without any expectation of payment therefor, and the lien would not have been filed had Blenard, Jr., and his wife remained married and if the Blenards, Sr. and Jr., had not so conspired to defraud and cheat her, that the house was erected and completed more than six months prior to the filing of the claim, and praying that the lien be declared void.

The Blenards, Sr. and Jr., answered, denying conspiracy, asserting the validity of the mechanics’ lien, and alleging that Blenard, Sr., furnished materials and performed labor “pursuant to an entire contract,” made by him with the plaintiff and Blenard, Jr., that he should furnish sufficient stone for the erection of the dwelling and “should perform such work * * * in and about the erection * * * of said dwelling as he was able to perform until the same should be completed.” Testimony was taken in open court on January 15 and 16, 1945. On January 15th Blenard, Sr., filed an amended account, showing the same totals as the original account, and also itemizing by dates days and half-days of labor aggregating 585 days, and by months the number of days’ use of the horses. He testified that each day, when the work was done, he kept a record of the day (or half-day) in the Hagerstown Gruber Almanac, ⁵⁵⁵ that on each full day listed in the account he did ten hours work, on each half-day four hours—or six or seven. The itemized account, begins, not in 1939 but on April 4, 1940.

From April 8, 1940, to September 30, 1940, 25 weeks, the account shows a full day’s work for every weekday (60 hours a week), including the Fourth of July and other holidays. After five days’ absence in the first week in October, the account then shows for 18 weeks, from October 7, 1940, to February 8, 1941, 12 half-days on Saturdays and a full day every other weekday, including Thanksgiving Day, Christmas and New Year’s Day, i.e., regardless of weather and of the fact that many of these days contained less than ten hours of daylight. Harvey Grove, the stone-mason who, with the assistance of Blenard, Sr., built the foundation, testified that they “started there late in the fall, it got cold, then we went off until about March the first.” “When the days were fit we were there pretty regularly all of the time when it was pretty and we could work, but lots of days we could not work, it would get cold.” After two weeks’ absence in February, the account shows, for 18 weeks from February 24, 1941, to July 5, 1941, a full day’s work for every weekday except one (Saturday, June 28th), not excepting July 4th or any other holiday. After one week’s absence in July, the account shows, for 23 weeks from July 14,1941, to December 20,1941, a full day for every weekday, including holidays.

The account shows no more work till April, 1942, 53 full days in April, . May and June, 24 in the next six months, and nine days in 1943, including only three full days and two half-days within six months of January 26, 1944. The plaintiff says Blenard, Sr., did not work on the house in 1943. Blenard, Jr., testifies that he never saw the itemized account before it was filed.

His father had never rendered him a detailed account. When he talked over his marital difficulties with his father, he never discussed this obligation that he owed his father, and his father ⁵⁵⁶ never mentioned the fact that the son was obligated to the father. The father first mentioned it in December, 1943, when he asked the son to go with him to his lawyer. The son went with him, and the mechanics’ lien was discussed with the lawyer.

On cross-examination the son was asked, “How much do you owe your father?”; he replied, “I really don’t know.” By the divorce the