First National Bank of Havre De Grace v. White

⁶¹⁶ Pattison, J., delivered the opinion of the Court. The appellee in this case was in the years 1905 and 1906 a resident of Pittsburg, Pa., and was, as he expresses it, in the business of “roofing- and terra cotta work.” Between the 8th day of Eovember, 1905, and the 18th day of January, 1906, he furnished labor and material in the construction of a bank building at that time being erected upon a lot of land in Havre de Grace, Harford County, Md., owned by the appellant; for which labor and materials so furnished he was to be paid the sum of ,$121.00. It not being paid, he, on the 13th day of July, 1906, filed a mechanics’ lien therefor, with interest thereon from the 18th day of January, 1906, against the bank building and the lot on which the same was erected. Others who had also furnished labor and material in the construction of this building, likewise filed mechanics’ liens.

Among them was one Abram M. Zimmers, who, on the 15th day of October, 1906, filed his bill of complaint asking that a decree be passed for the sale of the property, against which such liens had been filed, and that the proceeds therefrom be distributed among the lienors, as far as they were entitled thereto. In the bill so filed, in which the appellant and the lienors, including the appellee, were made parties defendant thereto, he alleged, among other things, that the John A. Sheridan Company was the contractor and builder of the said bank building, and' that the appellant was the owner of said building and the grounds upon which it was erected. It also alleged the filing of the liens of the appellee and others against said property. The appellant answered admitting that it was the owner of the building and the grounds upon which it "was erected, and in respect to the appellee’s claim admitted that it had been filed, as stated, but denied that his claim was due as alleged, or that it was a valid and subsisting lien against the property of the appellant. ⁶¹⁷ The appellee thereafter filed his answer to the bill, alleging, among other things, that the contract for the furnishing1 of the labor and materials, mentioned in his lien, was made with the appellant, and that he had at the time “no knowledge of any general contractor on the work and did not deal with any general contractor, but dealt directly with the said bank through its agents,”' and that not until a long while after the contract had been made was he notified that the John A. Sheridan Company was the contractor and builder of said bank building.

In his answer he also alleges that the material was furnished and the work done as stated in the lien, and that the whole amount to be paid therefor, together with the interest thereon, was still owing to him. Evidence was taken both for and against the recognition of this claim as a lien upon the property of the appellant mentioned therein, and upon submission of this evidence to the Court below the lien was sustained. It is from this order sustaining the lien that this appeal is taken. The sole question in this case is, with whom was the contract made and to whom was credit given by the appellee for the materials furnished and work done by him in the construction of the building; that is to say, was the contract made with and credit given to the appellant, the owner of 'the building and the grounds upon which it was erected, or was the contract made with and credit given to the contractor and builder thereof, the John A. Sheridan Company ?

If it should be found that the contract was made with and credit given to the contractor and not with and to the owner of the building, then the lien is defective,- because of the want of the notice required under the statute to be given by the appellee to the owner of the building and the grounds upon which it was erected, of his intention to claim a lien on the property for the work and materials furnished. If, however, it should be found that the contract was made with and credit given to the owner of the building, the appellant, then the lien should be sustained. ⁶¹⁸ The appellee testified that the first information he had as to the erection of this bank was communicated to him by a letter from B. T. Cropper, of Philadelphia, agent of the Akron Boofing Tile Company, of which company he was also a representative, though in a different territory. In this letter, dated October 25th, he was requested to make an estimate on the tile roofing for this building. This he did, and a short while thereafter forwarded the same both by wire and mail, and in reply thereto was notified by Cropper that the contract had been awarded to him and for him to proceed with the work.

Upon receipt of this notice the order was at once sent to the factory. He further stated that after this he was in Philadelphia and there he met Mr. Plack, architect, and Mr. Yanneman, cashier of the appellant bank. The exact date of this visit he could not recall, but it will be seen by his letter to the John A. Sheridan Company of November 11th, 1905, offered in evidence, and the letter of Cropper to White, dated November 13th, 1905, and by other evidence appearing in the record, that the date of his visit to Philadelphia on the occasion referred to was Tuesday, November 7th, 1905. He testified that upon this occasion, after discussing other questions in relation to the shipment of tile, etc., “Mr. Plack said he wanted us to make a contract with and send the bill to the John A. Sheridan Company.

They stated their reason for this was they wanted to keep their accounts here with Mr. Sheridan. Erom the fact that Mr. Cropper told me that he had bid with one or two other metal roofers I supposed that the John A. Sheridan Company was a metal roofer. I stated that I was willing to malee a contract with or send the bill to anyone, they chose if they would agree to be responsible for the payment of the money to us. Mr. Plack turned to Mr. Yanneman and put the question to him and Mr. Yanneman consented to be responsible for the payment of the money.

I did not know until quite a time after we had finished our work that the John A. Sheridan Company was a general contractor. ⁶¹⁹ So that my position in this case was that we were dealing entirely with the hank through Mr. Plack and Mr. Vanneman, and that we would he paid by them; that they would hold the money back from the tin roofer, as I thought at the time. The fact of our sending the bid to Sheridan for him to accept and sending the bill to Sheridan was to straighten out the account between the owner and Sheridan.” Mr. R. T. Cropper, of Philadelphia, testified that his business was that of “roofing tile and slate,” and stated that in the latter part of 1905 he was át the office of Mr. Wm. L. Plack, architect, in the City of Philadelphia, and was told by him that he had a roof upon which he wished to use tiling, and suggested that he submit to him samples.' Later he was told the location of the building, and thinking that it was not in his territory, but in the territory of the appellee, he wrote to him the letter referred to by the appellee in his testimony. In this letter he forwarded to him the blue print that had "been furnished him by the architect, with a request that he submit an estimate, which was to include the application of the tile upon the roof.

This estimate was received and accepted, and he was requested by Mr. Plack to instruct Mr. White to proceed with the work. He further testified, saying: “Later I visited the office, I think possibly in response to a ’phone call, and Mr. Vanneman (the cashier of the bank) was present, when he adopted certain patterns of tile which practically had been accepted before, but with the further approval of Mr. Vanneman.” That the kind and quality so selected by Mr, Vanneman were those that were placed upon the roof by Mr. White, the appellee, and that in making this contract witness dealt with no one except Mr. Plack and Mr. Vanneman : that he “never heard of the John A. Sheridan Company until the work had progressed quite some little, possibly after they had been working then a couple of days or more. The work was in progress anyway.” That he never saw John A. Sheridan in his life. ⁶²⁰ William L. Plack, architect, upon being called to the stand by the appellant, testified that the appellee furnished the material and did the work mentioned in his lien. He recalled the meeting of the appellee and Mr. Vanneman, the cashier of the bankKin his office in Philadelphia; he could not say whether this meeting was before or after the work was done.

When asked what was said by either the witness or Vanneman to White, or by White to either of them, he replied by saying: “To the best of my knowledge, Mr. White dropped in accidentally while Mr. Vanneman was there, and Mr. White brought up the question of who was to pay for the tiling or who was the party with whom he contracted, and I told him-he was a sub-contractor under the John A. Sheridan Company of Baltimore. He then wanted to know whether the John A. Sheridan Company of Baltimore was responsible. I knew very little about them and I thought they were all right, and I said: ‘Mr. Vanneman here can tell you all about them.’ Mr. Vanneman then told him to the best of his knowledge the John A. Sheridan Company was entirely responsible; that they had big interests, were doing a great deal of work.” Witness could not recall what was said in reply thereto by Mr. White, but “he seemed to be satisfied with Mr. Vanneman’s explanation of the situation and I heard nothing more about it. The material- was delivered.” That part of the testimony of White where he said “I stated I was willing to make a contract with or send a bill to anyone they chose if they would agree to be responsible for the payment of the money to us,” was repeated to witness, and he was asked if anything of the kind was said in the interview, to which he replied: “I don’t know that they were the exact urords that Mr. Vanneman used, but I felt at the time and I think that Scott White felt that the idea to be conveyed was that he should be protected in the payment of his bill.

The whole gist of the conversation was Mr. Vanneman acting in the capacity of cashier of the bank and I as archi ⁶²¹ tect of the bank, without detailing any personal responsibilities, talking- in a general way upon the subject.” Upon cross-examination, when asked: “Who solicited the bid from White for the roofing?” he said: “I went to Mr. Cropper’s place, at Builders’ Exchange on S. 7th St., was very favorably impressed with the material "he had on exhibition, and when Mr. Yanneman next came to the city I took him clown and we looked them over. He was also favorably impressed and we made a selection and notified Sheridan.” That after the selection was made by witness and Yanneman and notice thereof given