Brunt v. Farinholt-Meredith Co.

Boyd, C. J., delivered the opinion of the Court. The three appeals of Henry Brunt v. Farinholt-Meredith Company, Mary Coale Dugan v. Same, and The National Junior Republic of the City of Baltimore v. Same, were argued together. The firm of De Waard and Sons, contractors and builders, entered into a contract with each of the appellants for the erection of a house — those of Mr. Brunt and Miss Dugan being in Annapolis and that of the National Junior Republic being at Annapolis Junction, in Anne Arundel County. The Farinholt-Meredith Company furnished materials for the three houses at the request of the contractors, and, having filed Mechanics’ Liens against the respective houses, instituted proceedings in equity to enforce them.

The lower Court on December 17, 1912, passed decrees in favor of the plaintiff (appellee) in each case, providing that unless the amounts named be paid within thirty days the respective properties should be sold, and containing the usual provisions in such decrees. From the respective decrees the defendants appealed, and as some of the principal questions are involved in all of them and they must be governed by the same principles of law, we will pass on the three cases in one opinion. 1. Decree against house of Henry Brunt. This decree is for $642.94 with interest from January 23rd, 1911, — being the total amount of the plaintiff’s claim.

The; bill of particulars contains items furnished from July 2nd, 1910, to October 26th, 1910, amounting to $634.65, and ¹²⁸ then on October 29th there was a charge for some items amounting to $8.29. Notice of the intention of the company to file a lien claim was served on Mr. Brunt on December 21st, 1910. He concedes that the items furnished from October 5th to October 26th are properly chargeable and that the appellee is entitled to a lien for them, but he contends that the items delivered prior to that time were not furnished under the same contract or understanding between the appellee and the contractors, and hence as to them the notice was not in time. The testimony on the part of the plaintiff is not altogether clear.' When Mr. Carey L. Meredith, secretary, and treasurer of the appelleej testified in chief he said, in answer to the question, how they came to furnish the material on this building: “Mr. De Waard came to our office after he had put up some of the rough lumber which he furnished himself from a sawmill in the country and asked us for a bid on a small list of materials, which amounted to $252.64.” That list was filed with the examiner and marked “Exhibit A.” He was then asked: “Did this consist of all materials furnished on the job?” and replied, “No; he after-wards ordered a lot of materials not included in this list each day as he needed it.” “Exhibit A” is not in the record but on cross-examination of that witness it appears that it was dated October 1st, 1910, and was what the witness called an “estimate.” He said the house was nearly half completed when the estimate was made, and the contractors had then already bought “approximately $350.00” from the appellee for the Brunt house.

Apparently either Mr. Meredith was mistaken when he testified in chief that the contractors “afterwards” ordered the materials not included in the list, or the record does not correctly state what he testified to, for with the exception of a small difference between the -amount of the estimate and the sum of the items furnished- between October' 5th and October 26th, the bill of particulars shows that the greater part of the bill was furnished before Mr. De Waard asked for a bid on the list ¹²⁹ of materials in the estimate, and not afterwards, as his evidence in chief states. On cross-examination he stated that the materials furnished before October 1st were not furnished pursuant to any agreement between them that his company was to furnish them, and he did not know from day to day that the contractors were going to buy from him for this house; that when they furnished the articles on the second of July that might have been the last order they would have gotten from the De Waard for the Brunt house. He was then asked: “Then you had no contract with De Waard to continue to furnish his material for the Brunt house or were under no obligation to continue to sell him, or for him to buy from you but when he sent his orders from day to day you furnished the things and sent them to the place that he told you to,” and replied: “That is right.” The following also appears in his cross-examination: “16 Q. These items charged in this account are widely separated, for instance on the 1st day of August you sell De Waard and Sons 1 keg of 20 penny nails, and there appears to be nothing further charged until the 16th of August, more than two weeks later, when you furnished him the 20 penny nails on the 1st of August you had no contract or agreement to furnish anything else? A. No. 11 Q. And you simply might or might not receive any further orders ?

A. Yes, sir. 18 Q. And does that apply all the way through to everything furnished? A. That applies until we get to the list of materials estimated from. 19 Q. The list of things of October 1st, 1910 ? A. Yes. 20 Q. These are the things tliat you had a contract with De Waard to furnish at the prices specified therein? A. Right.

T want to say that the reason for the long time between deliveries was because of the fact that they put their rough lumber in from the country sawmill, and all nails and other materials from us which explains why it would be a long time between buying from us. 21 Q. In other words they were buying first from one person . and then another, wherever ¹³⁰ they chose, and you had no contract to furnish anything except the items mentioned in Exhibit A?' A. That is right.” It is true he said on re-examination that all of the goods furnished for the Brunt job were furnished continuously, considered to be one bill and so charged, but while it may be true that in his dealings with the contractors he treated it as one bill, the testimony does undoubtedly show that the materials furnished after October 1st were furnished under a separate contract from those prior to that time. Mr. William Gr. Meredith, shipping and order clerk for appellee, testified as follows on cross-examination:- “22 Q. Did he (De Waard) make any contract with you to furnish all this material, or just send in orders from time to time as he wanted stuff ? A. He made a contract with C. L. Meredith and afterwards orders came to me and I would enter them on the day book and then on the wagon. 23 Q. Is the contract you refer to, is this the contract mentioned in the paper marked ‘Exhibit A’ which he made with C. L. Meredith?

A. It is. 24 Q. That is the only contract you know anything about ? A. Only one I know of. 25 Q. All the other orders came in from various, parties from time to time as he wanted the things ? A. Yes.” Having quoted from the testimony at some length, it would be well at this point to recall the principles of law applicable to such facts. By section 11 of Article 63 of the Code it is provided: “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 writing to such owner or agent, if resident within the city or county, of his intention to claim such lien.” In Trustees of Ger.

Luth. Church v. Heise & Co., 44 Md. 453 , Judge Alvey, in speaking for the' Court, announced certain rules which ¹³¹ have heen followed in cases of this kind and which may be thus stated: (1) It is not incumbent upon a claimant who furnishes materials to a builder, or other person than the owner, to establish an express antecedent contract made with respect to the exact quantity of materials to he furnished by him; (2) “In the absence of evidence of such express contract, the character of the account, the time within which * * * the materials were furnished, and the object of the * * * materials may afford proper grounds for the presumption that the * * * materials were furnished with reference to an understanding from the commencement that such * * * materials should he * * * furnished, if required by the builder;” (3) “In such case, it is from the last item in the account that the notice, and the time within which to take the lien, should date;” (4) “But where the materials are furnished for separate and distinct- purposes, or at different times, and at considerable intervals, or under distinct contracts or orders, though to be used by the contractor or builder in executing one and the same contract with the owner, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different parcels of material, and not from the last item in the account.” The evidence is not sufficient to create a presumption that there was “an understanding from the commencement that such materials should be furnished, if required by the builder,” but on the contrary it does affirmatively appear that there was no such understanding. It-cannot be doubted that if the estimate of October 1st had not been satisfactory to the contractors, they would have been under no obligation to purchase the material furnished in that month from the appellee. That was admitted by Mr. Meredith in his evidence.

The articles delivered during the month of October were furnished under the contract of October 1st, and if it be conceded that as to those delivered prior to that month ¹³² the presumption spoken of in paragraph (2) of what we have taken from 44 Md., supra, would arise, they were furnished under a different contract from that under which those in October were furnished. What is said of the claim of Myohl & Luken in Hensel v. Johnson, 94 Md. 729 , is very applicable to this claim. Judge Page said on page 736 the original contract was to furnish “not such lumber as might be needed for the construction of the houses but a specific quantity, contained on a list, a copy of which is in the record. ' The firm agreed to furnish the builder with those specified quantities for the sum of $1,487.45. Subsequently the builder purchased more lumber, not by virtue of the original agreement, but as he needed it.

The lumber furnished in addition to the kinds and quantities included in that list was as much under a separate contract as was the lumber furnished by the firm to Eckstine for other work that the latter was then conducting.” Again he said: “Of the delivery on the 2nd day of September, that being the last, Mr. Luken states that it was delivered, not by virtue of any understanding entered into before the beginning of the work, but because it Vas ordered either that day or previous to that.’ So that this case is clearly within the rulings in Trustees of the German Lath. Church v. Heise & Co., supra, where it was held that when the materials are furnished under separate distinct contract, the right to take the lien must date from the time of furnishing the different parcels of material and not from the last item. And this rule will prevail ‘if the materials are furnished under distinct contracts, though to be used for the same purpose, or by the contractor in executing one and the same contract with the owner.’ Watts v. Wittington, 48 Md. 356 .” Section 11'of Article 63, requires a notice to be given by the material-man or his agent within sixty days after materials are furnished, under a contract. with an architect, builder or "any other person except the owner of his intentinn 'tó claim the lien, in'order that the owner may have the ¹³³ opportunity to protect his property against liens, in case the contractor does not pay for materials ho purchases, and lienee it is important that the material man should not be permitted to extend the time