Evans Marble Co. v. International Trust Co.

Jones, J., delivered the opinion of the Court. There are four appeals brought up in this record. The appellants are asserting mechanics’ lien claims against a certain building located in the city of Baltimore constructed for the defendant corporation, The International Trust Company. Edgar M. Noel was the contractor with this defendant for the construction of the building and the appellants all had with him sub-contracts with reference to its construction.

The proceedings below were begun by a bill filed by George T. Rosensteel, in Circuit Court No. 2, of Baltimore City, to enforce a claim for work done by him in connection with the erection of the building in question in pursuance of his sub ²¹³ contract with Noel. The executrix of Rosensteel, he having died since the institution of his suit, is the appellant here in such suit. Others, of the appellants were made parties defendant in the proceeding instituted by Rosensteel—all of these having at the time filed claims for lien against the building in question based upon their several contracts. The Court below, after testimony and hearing, denied the relief sought in this proceeding and decreed that the liens asserted by the appellants were invalid and that their claims did not attach as liens against the building in question under the Mechanics’ Lien Law as applicable to the city of Baltimore.

From that decree these appeals were taken. The questions decided by the Court below and presented for our consideration here arise out of the defenses set up against the enforcement of the claims of lien in question by the answer of the International Trust Company. The ground of defense which will be first noticed is one which is urged as applicable alike to all of the lien claims here in controversy and is that they all arose out of “entire and indivisible” contracts between the claimants and the said Noel for furnishing labor and materials for one entire consideration—that is one lump sum to be paid as the price of both labor and materials. The contention as to this is that, inasmuch as the Mechanics’ Lien Law in its application to the city of Baltimore provides no lien for materials furnished for the erection of buildings therein, but only for “debts contracted for work done on or about the same,” the contracts in question embrace for one entire consideration both lienable and non-lienable items, and as a consequence no lien attaches under them.

The law providing for mechanics’ liens and regulating their enforcement, as to the city of Baltimore, which was in force at the time of the erection of the building here in question and the making of the contracts in connection therewith, is the Act of 1898, ch. 502, the first section of which reads as follows: “Every building erected and every building repaired, rebuilt or improved to the extent of one-fourth its value, shall be subject to a lien for the payment of all debts contracted for ²¹⁴ work done on or about the same. ” Prior to this Act our statute law had provided for a lien for materials furnished for any of the purposes indicated in this section of the statute of 1898 as well as for work and labor done, &c. The purpose of the last-mentioned statute was, on account of possible and actual abuse of the right, to eliminate from the Mechanics’ Lien Law all right of lien for materials furnished for any of the said purposes, as respected its operation in the city of Baltimore. The question raised by the contention of the appellee corporation, now under consideration, has never before been pré-' sented for adjudication in this Court. It has, however, been so presented in other jurisdictions; and Courts of the highest repute have maintained the proposition asserted in such contention.

There is also an agreement in the text books as to the principle involved. In 2'Jones on Liens, sec. 1323, it is said: “When matters for which there may be a lien are mingled with others for which no lien is given they cannot be separated by a jury in accordance with oral evidence. It is not sufficient that the amount of the lien can be ascertained by extrinsic evidence but the owner of the property is entitled to be informed of that fact from the account or statement of the lien filed in accordance with the statute. If a contract be made to do the carpenter’s work on certain houses and to superintend such work for a sum named, and there be no specification of the sum to be paid for work or of the sum ‘to be paid for superintending the work no lien can be acquired under the contract.

The objection is not obviated" by filing an account for work alone without mentioning thé matter of superintendence for when the contract is putin evidenced will appear that the entire charge was not for work but a part of it for superintendence and that there is no means of determining how much is due for work for which there might be a lien and how much is due for superintendence for which there can be no lien.” Id Phillips on Mech. Liens (3 ed.) sec. 296, the same doctrine is expressed in the following: “When the contract is for an entire sum to be paid for various services, some of which are not ²¹⁵ lienable, no lien can be maintained for any of the work. * * Under a statute which gave a lien for the performance of labor or furnishing of materials actually used ‘by virtue of any agreement with or consent of the owner thereof’, etc. * * ‘provided that no lien for material furnished shall attach unless the person furnishing the same shall before so doing give notice to the owner of the land if such owner be not the purchaser of the materials, that he intends to claim such liens,’ ” “if labor and materials have been furnished by a sub-contractor and used in the erection of a building under an entire contract, with no stipulation for any separate price for either, and it was impossible to determine what part of the contract price was to be applied to either and there was no mechanics’ lien for the whole, for want of notice to the owner, it was held there could be no lien for any part.” In 20 Am. & Eng. Ency. of Law, (2 ed.) 359, it is said: “When lienable and non-lienable items are included in one entire contract for a specific sum, and the value of the lienable and non-lienable items is not apportioned, but is made the basis of a lumping charge, no lien can be enforced.” The authors support the text by the citation of authorities illustrating the application of the doctrine there enunciated. These are reproduced in the brief of the appellees.

Of the cases to which reference is thus made none, perhaps, more distinctly affirm the proposition for which the appellees contend than those of Morrison v. Minot, 5 Allen, 403 , and Graves v. Bemis, 8 Allen, 573 . A statute of Massachusetts, under which these cases arose, provided that no lien should attach under the law for materials furnished for any building when the same were not purchased by the owner of the land, unless, before they were furnished, notice was given to such owner that the person furnishing them intended to claim a lien therefor. In the case of Morrison v. Minot , 5 Allen, supra, certain sub-contractors agreed with the principal contractor, who had made a written contract to build a block of stores for the defendant, to do the carpenter and plumbing work on the same. Their contract was a verbal one to do the whole work and furnish the materials for the lump sum of $6,700. ²¹⁶ They proceeded to perform their contract and had partly.performed the same and received payments on account when they gave notice to the defendant that they intended to claim a mechanics’ lien for all labor and materials which they should, thereafter furnish.

No account was kept of the amount or value of materials or labor furnished before notice was so given so as to distinguish these from such ás had been furnished after the notice except by way of “estimate and approximation.” The trial Court held upon these facts that the claimants were not entitled to a lien and they excepted to this ruling. The exceptions were overruled in the Supreme Court which said that the facts showed conclusively that the “petitioners” (claimants) could not maintain their suit; that the claimants had no lien for materials furnished prior to the notice given' to the owner; that “the debt due to them was for an entire sum, on the completion of their contract;” that the “contract included materials for which there never was any lien; and it was an entire contract;” that there had “therefore never been any debt due to them for labor or materials for which they could have a lien, unless the lien extended to the whole contract;” that no sum whatever had been or was then due to them for labor, or for materials furnished since the notice to the owner; that no such separate demand could be ascertained or stated'. This case was followed by that of Graves v. Bemis, 8 Allen, supra, in which a contractor agreed in writing to build a house for the defendant according to'specifications for which defendant agreed to pay him the sum of $6,400—of which $1,000 was to be paid when the brick work was done; $'i ,000 when the building was ready to plaster; and the balance on the completion of the contract. A lien claim was set up by a sub-contractor who had agreed with the principal contractor to do all mason work for the house for $2,550—to be paid $1,000 when the plastering was done and the balance on the 1st of July, 1863; and who fulfilled his contract—performing certain work described in his bill of particulars and furnishing certain materials for which he was not entitled to a lien.

It ²¹⁷ was agreed, in the case, provided evidence to prove the same would be competent, that the contract was a profitable one; that the profit consisted in the furnishing of the labor; that the bricks furnished had a definite market value; and that the prices named in the lien—claimant’s bill of particulars fairly denoted the value of the labor over and above the market value of the materials furnished at the price fixed by the contract. The trial Court gave judgment for the defendant. Upon exceptions alleged the Supreme Court sustained the judgment below; and said “the petitioner (the lien claimant) has never been entitled to any payment for labor either by express contract or by an implied contract on quantum meruit. The contract was entire for labor and materials, and there being no lien for the materials, there is none for the whole or any part.” The contracts involved in this controversy need not be here set out.

They will sufficiently appear in the report of the cases in this record and will be found, as respects the features which affect our inquiry here (with the exception of that in No. 16 of these appeals to which more particular reference will be made), to be identical with those dealt with in the cases just reviewed. These have been cited and approved in later cases in the same jurisdiction; and elsewhere as well. There are a number of authorities that maintain the propositions they lay down and none have been cited nor have any been found that go to deny the principle that controlled their decision. Some of the cases in point are Mulrey v. Barrow, 11 Allen, 153 ; Angier v. Bay State Distilling Co., 178 Mass. 163 ; Baker v. Fessenden, 71 Me. 292 ; Kelley v. Kelley, 77 Me. 135 ; Adler v. Worlds Pastime Proposition Co., 126 Ill. 373 ; Allen v. Elwert, 29 Ore. 428 ; Rinsel v. Stumpf, 116 Wis. 287 ; Peatman v. Centreville Light, Heat and Power Co., 105 Iowa, 1 -9; Nelson v. Withrow, 14 Mo.

App. 270 . The contention of the appellees which has been under consideration seems to have the support of the authorities, where the question thereby raised has come up for adjudication. We think it is also supported by reason and a proper con ²¹⁸ struction of the statute of this State under which the cases at bar arise. ■ The lien which the statute gives is of itself “a peculiar, particular and special remedy” and is “bounded and circumscribed by the terms of its own creation.” 13 Ency. of Plead. & Prac., 942. In the case of Sodini v. Winter, 32 Md. 130 -3, &'s sa'd “this peculiar lien does not originate in contract; it is purely a creature of positive statutory enactment, to be maintained and enforced to the extent and in the mode which the statute prescribes.” This was again affirmed in McLaughlin v. Reinhart, 54 Md. 76 ; Wehr v. Shryock, 55 Md. 334 , and Wilson v. Simon, 91 Md. 1—6.

In McLaughlin v. Reinhart, supra, it is also said: “It is a purely statutory lien. It presupposes a contract express or implied, which existing, the law affixes a lien to secure the payment of the mechanic or material man, for what is done and furnished. The right to compensation must exist or there can be no lien.” The plain interpretation of the foregoing expressions of views by this Court is that to create' a right to the lien there must