District Heights Apartments v. Noland Co.

Delaplaine, J., delivered the opinion of the Court. Noland Company, Inc., a Virginia corporation, filed these two equity suits in the Circuit Court for Prince George’s County against District Heights Apartments, ⁴⁷ Sections D-E, Inc., and District Heights Apartments, Sections F-G, Inc., to enforce mechanic’s liens for plumbing and heating materials furnished upon orders of a subcontractor for installation in the apartment buildings owned by defendants. James Plumbing and Heating Company, Inc., of Alexandria, was chosen as subcontractor to furnish and install the plumbing and heating equipment in eight buildings for District Heights Apartments, Section D-E, Inc., and in eleven buildings for District Heights Apartments, Section F-G, Inc. The James Company contracted to buy the plumbing and heating materials from complainant, and complainant delivered materials for Section D-E between November 15, 1950, and July 24, 1951, and for Section F-G between November 16, 1950, and August 8, 1951. On May 9,1951, the James Company, having encountered financial difficulties, assigned to complainant all its right, title and interest in the money which the general contractor owed it.

However, on September 11, 1951, when the bills against the James Company remained unpaid, complainant served upon an agent of each defendant a notice of intention to claim a mechanic’s lien. As neither defendant paid the amount claimed, complainant filed the instant suits, which were tried together. In the first case the chancellor entered a decree awarding complainant a lien for $2,706.71 with interest from October 8, 1951. In the second case he awarded complainant a lien for $4,905.58 with interest from October 8, 1951.

Defendants attacked the decrees on two grounds: (1) that the evidence does not support the finding that the materials for which the liens were imposed were delivered to defendants; and (2) that complainant did not give to either defendant timely notice of intention to claim a lien. First, defendants contended that, while several of the delivery tickets were receipted by their own agents, most of the other tickets were receipted by the truck ⁴⁸ drivers of the James Company “when they picked them up at Noland’s place,” and the drivers could have hauled the materials to some other places. The procedure of the James Company was for one of its employees to make out a purchase order and send one of its trucks to complainant’s supply house, where a clerk would make out a delivery ticket and deliver the materials to the truck driver. There were several drivers employed by the James Company who hauled the materials from complainant’s supply house to the apartment buildings in District Heights, but they were not called as witnesses.

Defendants contended that it was not proved that they had received the materials for which the truck drivers and other employees of the James Company gave receipts. They argued that a materialman should not be given a lien against an owner of property upon proof merely that he delivered materials to a subcontractor employed on the owner’s property. In an equity proceeding to enforce a mechanic’s lien, the claimant has the burden of proving his cause of action. Accordingly, to enforce a mechanic’s lien for materials furnished, the claimant must prove the delivery of the materials to the defendant.

Jean v. John W. Wilson & Son, 38 Md. 288, 298 . It has been held in several States that materials furnished for a building must be actually used in its construction or alteration in order to become the foundation of a lien upon it. In most of the States, however, actual use of the materials is not requisite if they were furnished for a particular building or improvement. Maryland has adopted the rule that where a materialman delivers materials to the site of construction of a number of buildings comprised in a single project, it is not essential to the validity of a mechanic’s lien claim that he must show in which buildings the specific materials were used, or even that the materials were actually used on the project, if they were purchased for and delivered to the site of the work.

Maryland Brick Co. v. Spilman, 76 Md. 337 , 25 A. 297 , 17 L. R. A. 599; Humphrey v. Harrison Bros., 4 Cir., ⁴⁹ 196 F. 2d 630 . It is reasoned that to require positive testimony that each specific article was used in a certain building would make the Mechanics’ Lien Law more of a burden than a benefit. When materials are purchased for use in a proposed building, and they are furnished in pursuance of the contract, and there is no testimony tending to raise a suspicion that the materials were not used in the building, it is reasonable to conclude that the materials did in fact go into the building, especially where it is shown that some of the materials have been used in the construction. Rice v. Hodge, 26 Kan. 164 ; Standard Lumber Co. v. Fields, 29 Wash. 2d 327 , 187 P. 2d 283 , 175 A. L. R. 309.

In the Court below Morris Hirshman, of Alexandria, who had been the secretary of the James Company, testified that the company had ordered the materials from complainant, and that there had never been any question of complete delivery to defendants in accordance with the specifications approved by the Federal Housing Administration. He examined the delivery tickets and identified the signatures of the construction foreman and six employees of the James Company, who received the materials and signed for them in their capacity as agents of the company. He was asked whether it was possible that a truck driver could have hauled some of the materials intended for defendants’ apartment buildings to some other buildings. He replied that it was not possible, because each purchase order was distinctly marked for the place intended and “there was only one job on the books with James Plumbing and Heating Company and District Heights.” Whether this reasoning has merit or not, it is admitted that the work was completed according to specifications without the necessity of ordering additional materials, and it can be inferred that the drivers did make the alleged deliveries since there was no shortage of materials.

This case is quite similar to Hill v. Imboden, 146 Ark. 99 , 225 S. W. 330 . There, as here, the property owner challenged the sufficiency of the evidence to prove that ⁵⁰ alleged materials had been delivered to his premises. The materialman had contracted to furnish all materials for construction of a building at market prices, and he testified that he had delivered the materials as ordered by the workmen in charge of construction. The materialman’s custom was to load the materials in a wagon for delivery and to write the items on a delivery slip.

He gave two carbon copies to the driver, who left one copy with the man to whom he delivered the material and obtained a receipt on the other copy. At the trial he produced the slips for each item, but, although it had been the custom for the men in charge of construction to sign the slips, it appeared that many of the slips in question were not signed. The owner offered to pay for