Greenway v. Turner

Mason, J., delivered the opinion of this court. This is a proceeding under the mechanics’ lien law of 1838, chap. 205, and its supplements. The defendant contracted with a man named Wall for the building of a house in Baltimore, and Wall obtained a portion of the materials used in the house from the Messrs. Turner, the plaintiffs.

At different times and at short intervals from the month of November 1846, up to the 20th September 1847, materials were furnished as alleged by the plaintiffs, and which are not denied by the defendant. No materials were again furnished after the 20th September until the 7th of February 1848, a period of nearly four months. At the last mentioned date, through the direction of a man named Conolly, who professed to act as Wall’s agent, certain other materials, amounting to $1.86, were obtained from theplaintiffs to be used as was alleged in the building, but which were not in fact used, though delivered at the house; the defendant objecting to their delivery, and insisting upon their being taken away, denying at the same time Wall’s right further to bind'him. By the contract between Wall and the defendant, the house was to be completed by the 1st of August 1847, but in fact it was not completed for more than a year ³⁰³ afterwards.

There is also testimony in the record going to show that in October 1847, the defendant had taken the management of the building into his own bands, and bad virtually terminated his contract with Wall. On the 5th of February 1848, two attachments were issued against Wall as an absconding debtor, upon which judgments of condemnation were entered, and on the 7th of the same month he applied for the benefit of the insolvent laws, having for a long time previous been embarrassed in his circumstances. This appeal comes before us upon exceptions taken by the defendant below, to the refusal of Baltimore county court to grant two instructions prayed for by him, upon the aforegoing testimony. "We are now required to review the decision of the court below, and if necessary to correct it.

In the first prayer the court are asked to instruct the jury, “that the plaintiffs are not entitled to recover if the jury find that Jacob Wall was not the contractor, architect or builder of the building described in the proceedings, at the time when the materials charged by the plaintiffs on the 7th February 1848, were charged or furnished.” If in point of fact the contract between Wall and the defendant was at an end, at the time the materials were last furnished, no lien or claim against the defendant or his property could result to the plaintiffs by virtue of the delivery on that day. Nor is any formal notice necessary to be given to those furnishing materials to the contractor, of the termination of the contract, provided bona fide, and in fact it is at an end. The party furnishing the materials has the duty imposed upon him by the act of Assembly, which was designed mainly, if n-ot exclusively, for his benefit, of seeing that he is dealing with the person who is actually the builder or contractor at the time the materials are furnished. If the materials were furnished by virtue of an express authority or direction from the owner of the building, there might be some reason for requiring some notice equally express revoking the authority or direction.

But where the authority to charge and bind the owner, alone results from the contract between ³⁰⁴ him and the builder, that authority must be taken ás having ceased as soon as the contract ceases. If it were otherwise there would be no protection for the owners of buildings against the acts of improvident and fraudulent contractors. It is hardly to be presumed that the lien law imposes upon the owner of a building the necessity of giving public notice-through the papers, of the termination of his contract with the builder, in order to protect him against the acts of the' latter: nor can it be contended that individual or personal notice to each material-man, or sub-contractor, is required,because in many cases it would be impossible for the owner to know who they were. This law provides, that unless within sixty days after the materials have been furnished a notice be served upon the owner, setting forth the' claim for materials, &c., no lien for the same will accrue, and in case such notice is served, he may retain from the cost of such building, from the contractor, the amount which may be due the party