Dermer v. Faunce

The appellees in this case, the owners of a store and residence at 2301 Edmondson Ave., in Baltimore City, entered into a contract on February 15, 1946, with one Gerald Golden, as general contractor, for improvements to the property for the sum of $8,000. The appellant, a registered plumber, entered into a sub-contract dated March 15, 1946, with Golden to furnish materials and labor in the installation of plumbing and a complete heating system on the premises for the sum of $1,500, payable in installments as specified work was completed. There were no contractual relations between the owners and the sub-contractor. Golden was to complete all the work by April 15, 1946, but failed to do so.

On May 15, 1946, the owners cancelled their contract with Golden and ordered Dermer off the premises. Dermer thereupon brought an action of replevin against the owners for five radiators, two unit heaters, one Teco hot water heater and certain loose pipes and fittings placed on the premises by Dermer. The Sheriff scheduled the property, and valued it at $125, whereupon the defendants applied for and obtained a writ of returno habendo . An appeal from that order was dismissed as premature.

Dermer v. Faunce, 187 Md. 610 , 51 A.2d 76 . Upon trial of the case the Court submitted special issues to the jury, and the jury found that on May 15, 1946, four of the radiators were "physically attached to the permanent piping in said house", but could be removed without damage to the building, and that the two unit heaters were not physically attached. The undisputed testimony showed that none of the other material had been attached. The radiators, which were not new, were of a standard type, not *Page 498 especially adapted to the premises.

It was undisputed that Dermer had not been paid for any of the material in question by Golden or Faunce, and that the plant was not in operable condition. In fact, Dermer never purchased the oil burner contracted for, and never installed the boiler. Dermer testified that he paid for all of the material in question and ordered it sent to the premises, but denied that he had attached the radiators or authorized anyone to do so; when he went to the premises with the Sheriff he found that four of the radiators had been attached "hand tight" to the piping. Faunce testified that he saw Dermer "hook up" the four radiators.

The issue of fact as to who attached the radiators was not resolved by the jury's findings. The court found a verdict in favor of the defendants, overruled a motion for judgment n.o.v. and entered judgment in favor of the defendants for a return of the goods or their value. In an opinion filed in the case, the court took the view that title to all of the material passed to the owners, or to the general contractor, upon delivery to the premises, relying upon the decision of this court in Richardson v. Saltz, 127 Md. 388 , 96 A. 524 , 525. In that case Saltz and wife, the owners, contracted with Hobson for the erection of a building.

Hobson contracted with Richardson for the furnishing of stone, which was consigned to Hobson. Upon breach by Hobson, the owners completed the building, using the stone delivered to the premises. More than sixty days after delivery, Richardson gave notice of intention to claim a mechanic's lien. It was held that the notice was too late.

The court said (p. 392): "It plainly appears that there was an absolute sale and delivery to Hobson, and we find no facts stated which would justify us in finding Hobson was acting as the agent of the appellees. The fact that they took possession of the building, including the stone already used as well as that not used, cannot change the relations of the parties, so far as the application of this statute is concerned. The title to the stone had forever passed from the appellants, and their right to compensation was conditioned *Page 499 upon the payment by Hobson or upon their perfecting their lien according to the mandate of the statute." The case is readily distinguishable. In the case at bar there was no sale of material to Golden or consignment to him, nor was he obligated to pay for the material until it had been properly installed in the building.

Rule 2, section 37 of Article 83 of the Code, § 19, Uniform Sales Act provides: "Where there is a contract to sell specific