Gunther v. Bennett

Fowler, J., delivered the opinion of the Court. The appellees, Samuel and Frank Bennett, copartners, doing business as tinners, dealers in stoves and gas fixtures, contracted sometime in the year 1886 with William H. Yeatman, who was the owner of certain lots of ground on Lexington street, in the City of Baltimore, to furnish the materials, and do certain work appertaining to their business, upon five houses to be erected upon the lots above mentioned. The plaintiffs, now appellees, allege in their bill that, having made the said contract with said Yeatman, they on their part fulfilled all their engagements with him, and that the work agreed to be done was fully completed in the latter part of January, 1887; that in accordance with the statute relating to mechanics’ liens, they filed their claim for $520 as a lien against said five buildings; that their lien claim as to three of said houses has been entered “satisfied,’’ and ³⁸⁶ that there was due them $108 on the house first described in their said claim, and $103 on the house secondly so described; that subsequent to the commencement of said houses, said Yeatman assigned said two houses and lots to two of the defendants, Isaacs and wife, and they conveyed the same by way of mortgage back to said Yeatman, to secure a part of the purchase money; that said mortgage was then assigned by Yeatman to Gunther, another defendant; that said Yeatman died in 1881, and his administrators are parties defendant to this suit. The bill was filed to enforce a mechanics' lien against the said two houses, and was answered by all the defendants except five, against whom a decree pro eonfesso was taken on 13th of December, 1888.

There are three questions to be considered: First. Have the appellees proved their claim ? Second. Does the bill of particulars filed with the lien claim conform to the requirements of the statute? and, Third, as to the admissibility of the testimony of the witnesses Gunther, Isaacs and Fahey, in relation to a paper called “a waiver of liens.” 1.

As to the proof of claim: The appellees allege in their bill that they contracted with Yeatman, the owner of the ground, to do certain work, and furnish materials to complete the work agreed to be done by them, and their bill of particulars, filed with their claim, shows that the contract price for both work and materials was $1010. In order to make out their case, the plaintiffs must prove the contract, and their performance of it. And this they endeavored to do by their own testimony, which is excepted to because Yeatman, the other party to the contract, is dead. We think the exception is well taken, and that the testimony excepted to comes clearly within the spirit and terms of section 2, Article 35 of the Code, which provides that, “when an original party to a con ³⁸⁷ tract * * * is dead, * * * either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer.” In- order to avoid this objection, the appellees contend that this is not a suit on the contract, but that it is a statutory remedy to enforce a statutory lien, which is independent of contract.

While it is true the lien is created by statute, and that the remedy here pursued is also statutory, yet in the language of this Court in the case of McLaughlin vs. Reinhart, 54 Md., 76 , the mechanics' lien law itself “presupposes a contract express or implied, for labor or material to be done or furnished, which existing, the laAv 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.” But it is clear the right to compensation rests upon a contract either express or implied. In the case at bar, an express contract is alleged, and the amount claimed to be due for the work and materials furnished is fixed at the sum of §1070, “as per agreement.” We have said in 54 Md., 76 , that, the