Clark v. Boarman

Boyd, J., delivered the opinion of the Court. The bill was filed in this case by the appellant to enforce what is claimed to be a lien against the property of the appellee, under Article 63 of the Code of Public General Laws, entitled “ Mechanics’ Lien,” The account filed with the lien includes six charges, amounting to $1,922.50, and has a number of credits which leave a balance alleged to be due of $302.50. The first item is for $1,600.25, the cost of material and work done in building a frame house of the dimensions therein set out; the next four are for extra work done and materials furnished for that house, and the last is for building four outhouses for which the charge of $200. 50 is made. A written agreement was executed between the appellant and appellee, whereby the former undertook to erect a house, according to a plan thereto annexed, for the sum of $1,400.00.

Subsequently they agreed that the back building should be made larger than originally contemplated, and one of the differences between the parties is the amount to be allowed for that change, which we will have occasion to refer to. Amongst other objections to this proceeding, made by the appellee, is the fact that she was a married woman at ⁴³⁰ the time the contract was made, and still continued to be, but her husband was not made a party to the bill. She purchased-the property from E. S. Gardner, who conveyed it to her by a deed which is not set out in the record, but which we understand to be an ordinary deed conveying a statutory separate estate in the property to Mrs. Boarman— as at the argument it was so treated. It is not contended that the appellant could not file a lien against the buildings erected on the land belonging to the appellee because she was a married woman, but that it cannot be enforced by a bill in equity without making her husband a party.

It is said in Miller's Equity Procedure, section 16, that “ subject to a few exceptions, a married woman cannot be sued in equity without the joinder of her husband as a co-defendant,” and that author adds, “ the most usual exceptions are in cases where the wife is defendant in a suit brought by her husband, and when by statute she may be sued as if unmarried.” Our mechanics’ lien laws authorize the enforcement of a lien-claim by a bill in equity or scire facias, and Section 25 of Art. 63 provides that “ if the proceeding is by bill in equity, the same proceedings shall be had as used by the Courts of Equity to enforce other liens,” etc. Independent of the Act of 1898, chapter 457, which is not applicable to this case, and therefore need not be c onsidered, the husband should be made a co-defendant in a proceeding in equity to enforce other liens against property held as this is by a married woman, and therefore by the very terms of the statute, which we have quoted, the proceeding in equity to enforce a mechanics’ lien should follow that practice. The bill was therefore defective-in not making the husband of the appellee a co-defendant, but if that were the only difficulty in the way of recovery by the plaintiff we could remand the case for the purpose of having the proceedings amended, and we will therefore consider the other objections. There is no difference between the parties as to the terms of the original contract, but they do materially differ ⁴³¹ as to the amount to be paid for the change in the size of the back building. The plaintiff testified that the defendant agreed to pay him for any costs necessary in making the change, which he says was $200.25, while the defendant claims that he agreed to make the change for $65.00, and she is corroborated as to that by two other witnesses.

She concedes that the extra charge for whitecoating the house is correct, but they differ as to the other items in the account. The preponderance of the evidence sustained her as to the extra charge for the back building, and if it be conceded that the plaintiff is correct as to the other items, excluding the four small outbuildings of which we shall speak directly, his account would only amount to $1,586.75. It is admitted that the defendant has paid $1,620.00 — being $33.25 more than was thus due for the dwelling house and extra work done on it. They practically agree as to the charge for the outbuildings — the defendant admitting that she agreed to pay the plaintiff $200.00, whilst he only charged $200.50.

Section 19 of Art. 63, in stating what a claim under the mechanics’ lien law shall include, provides, amongst other things, that it shall set forth “ the amount or sum claimed to be due, and the nature or kind of work