Bukowitz v. Maryland Lumber Co.

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court of Baltimore City ordering the appellants to pay two mechanics’ lien claims filed by two different claimants against the property, 3101 Shelbourne Road, owned by the appellants as tenants by the entirety. The chief question raised in each case is as to the adequacy of notice of intention to file the claims. On May 4, 1954, the appellants, as owners, entered into a contract with Julian C. Hayes, trading as Hayes Construction Company, for the erection of a dwelling on their lot at a price of $18,975.00.

In the first week of October, 1954, Hayes defaulted on his contract and abandoned the work. The owners then contracted with another builder for com ¹⁵¹ pletion, at a cost of some $7,000.00 in excess of the original contract with Hayes. On October 9, 1954, Mr. Kolker, president of the Maryland Lumber Company, telephoned Mr. Bukowitz at his place of business, 25 W. Clay Street, stating that he had a bill for lumber furnished Mr. Hayes, which he threatened to collect by proceeding against the property. Mr. Bukowitz denied the debt.

It was shown at the trial that the Maryland Lumber Company, on October 6, 1954, had sent a letter by registered mail addressed to the appellants at 2603 Denison Street, Baltimore, where they were then residing. The envelope and contents were returned to the sender unopened and marked “refused”. On October 16, 1954, Mr. Kolker personally called on Mr. Bukowitz at 25 W. Clay Street and handed him a copy of the letter, dated October 6, 1954, and addressed to the appellants, and two sheets listing by number and amount invoices billed to Mr. Hayes on various dates from June 11, 1954, to October 1, 1954. It is contended that this statement was not sufficiently detailed to comply with the statute, but for - present purposes we may assume, without deciding, that it was.

It is undisputed that this letter and the attached statement was never served on Mrs. Bukowitz, and there is no evidence that she ever received it. On December 10, 1954, the Maryland Lumber Company filed its lien claim in court which for the first time disclosed the details of the invoices. On October 20, 1954, Mr. Cohen, trading as Atlas Lumber Company, sent a registered letter addressed to both of the appellants at 2603 Denison Street, Baltimore, enclosing a statement of materials furnished to Hayes on various dates between August 8, 1954, and September 2, 1954. This letter was received and signed for by Mrs. Bukowitz.

There is no evidence that it was ever delivered to Mr. Bukowitz or that he ever received any other written notice of intention to claim a lien prior to the filing of the lien claim in court on March 1, 1955. Code (1951), Art. 63, sec. 1, as amended by Ch. 759, Acts of 1953, provides for a lien to cover materials furnished in Baltimore City. Sec. 10 of the same Article provides ¹⁵² that “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 sucli materials, or both, as the case may be.” Sec. 11 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 writing to such owner or agent, if resident within the city or county, of his intention to claim such lien.” Sec. 12 provides: “If such notice can not be given on account of absence or other causes, the claimant or his agent may, in the presence of a competent witness and within sixty days, place said notice upon the door or other front part of said building and shall file a claim with the clerk of the circuit court for the county or the circuit court of Baltimore City, as the case may be, as hereinafter mentioned.” It is well settled that the requirement of timely notice of intention must be at least substantially complied with. In Kenly, Use of Otto v. Sis. of Char., 63 Md. 306, 309 , it was said: “The foundation of the lien, in a case like the one before us, is the prior notice to be given to the owner.

It is required for the protection of the owner, who is authorized to retain in his hands the amount due to the party giving the notice. It must be given in writing and served on the owner, or his agent, if they are resident of the city or county where the building is erected. If such notice cannot be given personally on account of absence, or other causes, the