Crane Co. v. Onley

Collins, J., delivered the opinion of the Court. This is an appeal by Crane Company, appellant, from a decree of the Circuit Court for Worcester County, setting aside a mechanics’ lien filed by the appellant against the property of James S. Onley and Elizabeth B. Onley, his wife, appellees, in Worcester County, and enjoining appellant from enforcing that lien. During the winter of 1947 — 1948, a dwelling house was erected on the property owned by the appellees, as tenants by the entireties. Specifications for plumbing and electrical work in the house were prepared by an architect and bids were sought for this work.

A contract was entered into between Mr. James S. Onley with Mr. Leroy Stark for this plumbing and heating work according to those specifications. These two parties agreed orally to use material from Crane Company, appellant. ⁴⁶ Mr. Onley paid Mr. Stark in eight payments from January 2, 1948 to March 27, 1948. Mr. Stark did not pay Crane Company, and on or about July 3rd, 1948, the appellant filed in the office of the Clerk of Court for Worchester County a mechanics’ lien in the amount of $1562.85 for the materials sold to Stark against the real estate of the appellees, under the provisions of Code (1939), Article 63 (Mechanics’ Liens). On August 6, 1948, the appellees filed against the appellant a bill of complaint asking that this mechanics’ lien be declared null and void and expunged from the records, and that the appellant be enjoined from prosecuting any suit or action to enforce this lien.

From a decree of the Circuit Court for Worcester County granting the relief prayed, an appeal is taken to this Court. Mr. Onley testified that he had the following telephone conversation about the first of December, 1947, with Mr. Raymond Carey, the sales representative of the appellant for the Eastern Shore territory. “I called Mr. Carey on the ’phone and asked him if it was possible for our truck to pick up some of this material in Baltimore, which he said it was. And I also asked Mr. Carey, or told Mr. Carey I did not know Leroy Stark’s credit standing; if it was not all right that I would send a check with our truck; any of the material sent by any other trucking firm could be sent C.O.D. — I would pay upon arrival. He told me that this had been discussed with their credit department and that it was perfectly all right — they had established a credit — and for me to pay Leroy Stark as per my contract.” As a result of this conversation Mr. Onley sent his truck to Baltimore.

The truck returned with almost all of the materials included in the mechanics’ lien. Mr. Carey’s version of that conversation follows: “Well, Mr. Onley called me and said that the material that I had proposed to furnish was acceptable. Could he send his truck for it? And I said ‘yes.’ He said, ‘Could I get it on Monday?’ And I said ‘yes.’ He said, ‘Now, I want ⁴⁷ to be sure to get it.

Will there be any tie-up so far as money is concerned?’ And I said ‘no.’ I believe these words are fairly correct of the conversation that went on. ‘No, that Mr. Stark has been set up on an open account with us and it will not be necessary at this time to send any money for it. Your truck can call for it just the same as if it was Mr. Stark calling for it.’ ” He further admitted that Mr. Onley offered to send the money at the time the truck was to pick up the material. He said: “At the time it was irrelevant to me because we had an open account set up, and even though he offered the money I was not in a position to accept it because we were dealing with Mr. Stark.” He said that he did not remember any further conversation with Mr. Onley. He was present when the truck arrived at appellant’s place of business in Baltimore.

The appellant admits that “the version of Onley * * * and of Carey * * * differ only slightly.” The appellees claim that the appellant, as a result of this conversation between Mr. Onley and Mr. Carey, is estopped from claiming the mechanics’ lien here in question. With this contention of the appellees we agree. Code 1939, Article 63, Section 3, relied on by the appellant, provides: “No person having such lien shall be considered as waiving the same by granting a credit or receiving notes or other securities, unless the same be received as payment or the lien be expressly waived, but the sole effect thereof shall be to prevent the institution of any proceedings to enforce said lien until the expiration of the time agreed upon.” Wix v. Bowling, 120 Md. 265, 273 , 87 A. 759 . In the case of Bounds v. Nuttle, 181 Md. 400 , 30 A. 2d 263, 265 , the appellants were desirous of building a residence on their property.

Having heard of the appellees, they discussed with them a contract to build the house. The appellees testified that they did not build houses, but only furnished materials, and so informed the appellants. They admitted that they recommended the contractors to the appellants to build the ⁴⁸ house. Having looked at some of the houses that the recommended contractors had built they accepted the appellees’ recommendation, “met the contractors with an agent of the appellees on the premises, had some discussion with the agent as to the form of the contract to be entered into, and finally signed the contract with the contractors, on the premises, in the presence of the agent of the appellees.

This contract was with the contractors alone. The appellees were not only not parties to it, but it provided that the contractors should furnish and pay for all the labor, materials, etc., necessary to