Frederick County National Bank v. Dunn

Stockbridge, J., delivered the opinion of the Court. When John K. MeTver was awarded the contract for remodeling the Frederick County Rational Bank building he sublet portions of the work to be done. Joseph B. Dunn & Sons had submitted an estimate for doing the marble and tile work in the building, in which the various items to be furnished and performed by them were specified, and a lump sum named for these of $1,760.70. This proposition was made on April 9th, 1912, before the contract was actually awarded to MeTver.

Some discussion appears to have arisen between Dunn and MeTver whether at one point marble or tiling was to be used, owing to an apparent ambiguity of the •specifications. Mr. Teach, the architect, was called on to construe the language, which having been done resulted iii a reduction of the price named by Dunn from $1,760.70 to '$1,750, and on this basis the proposal of Dunn was accepted ■on February 27th, 1913. The performance of the work was begun by Dunn about April 7th, 1913, and completed, ae ³⁹⁴ cording to the interpretation placed by I)unn & Sons on the contract by May 19th, on which date their workmen left Frederick and returned to Baltimore. A bill was rendered by Dunn & Sons to Mclver promptly thereafter, for the contract price of $1,750.

When Dunn’s employees left Frederick there was one toilet room, located between the first floor and the basement, in which no tiling had been done either for the floor or side walls. This had been omitted for the reason that in the belief of Dunn & Sons it was not included in the work which they had contracted to do, and did not appear in the plans and specifications attached to and made a part of the contract between Mclver and the bank, with which plans and specifications they were entirely familiar. The architect was Alfred C. Leach; he “made the plans and specifications and supervised the work for the owners,” according to his own testimony. He was thus for many purposes the agent of the owner.

A month or six weeks after Dunn’s employees had left the building, completed as they supposed, Leach asked Mclver, the general contractor, why he didn’t tile that toilet, and he (Mclver) said it wasn’t in the contract. Leach replied that it was in the contract and would have to be tiled. Mclver communicated with Dunn in regard to the tiling of this room and Dunn took the same position that Mclver had taken, that the tiling of this toilet was not included in the plans and specifications of the contract. This raised an issue between Leach, representing the owner, and the contractor.

Such a contingency was provided for in the contract as follows: . “Should any discrepancy exist between the plans and specifications or any parts of either, or should the language of any part of the contract or specifications be ambiguous or doubtful, the architect shall decide as to the true intent and meaning, and all questions, disputes or differences as to any part or detail of the work shall be referred to the architect for his decision.” ³⁹⁵ The next steps are thus described by Mr. Mclver in his evidence: “The architect 'ruled we should, insisted that we should, and I did it to avoid litigation, to get my work through and have it accepted, and I did it without compensation from the bank.” He does not testify, however, that Dunn & Sons ever acquiesced in the decision of Leach, and he distinctly says that- Dunn did all of the work required of him under his contract, but because of Leach’s decision Mclver made an arrangement with Dunn to do the tiling of the floor and walls of this toilet, for which Mclver was to pay the sum of $91, or about half of the total cost of the work to be performed, and Dunn assumed the balance. This last work was done between the 21st and 26th of July, and on the last named date a bill was rendered to Mclver by Dunn for the $91. Both Mclver and Leach testify that the work done by Dunn was in every way satisfactory. Having received from Mclver only $350 up to August 7th, Dunn & Sons served a notice on the bank of their intention to claim a mechanics’ lien, and on the following day a lien was filed.

The claim consisted of three items, the original contract price of $1,750, the delivery on May 21st of five bags of cement,, $2.50, and the tiling of the basement toilet in July, $91. The time within which notice of an intention to claim a mechanics’ lien must be given is fixed by Article 63, section, 11 of the Code, and where notice is not given within the time prescribed no lien can be maintained. In this case if the proper date from which to compute the time was the doing of the last work in May, the lien was filed too late to be given effect, while if the proper date was July 26th it was in ample season. It is firmly settled by the decisions, both in this State and elsewhere, that if there are two separate and distinct contracts, even though they have relation to the same building, they can not for the purposes of a lien be coupled together so as to extend the date for the filing of the lien down to the ³⁹⁶ time of the last material delivered or work performed under the latest contract, but that as to each, the time for the giving of a notice'or the filing of a lien is dependent, for its being in season upon the particular contract under which the work is done, and conversely that when there is but a single entire -contract, the time is to be computed from the last material delivered, or work done, in connection with that contract, -even though that be small in amount