Himelfarb v. B & M Welding & Iron Works, Inc.

Singley, J., delivered the majority opinion of the Court. McWilliams, J., dissents. This is an appeal from an order of the Circuit Court for Prince George’s County enforcing a mechanics’ lien in the amount of $27,443.78 claimed by B & M Welding and Iron Works, Inc. (B & M) against property owned by Himelfarb and others. Joined as a defendant was Frederick W. Berens, Inc. (Berens), which held a construction deed of trust note secured by a deed of trust on the property.

Because the deed had not been recorded until after the commencement of construction, B & M’s lien, if valid, would take precedence over that of the deed of trust. Berens challenges the validity of B & M’s lien on the ground that the notice given by B & M to the owners failed to meet the requirements of our mechanics’ lien statute, Maryland Code (1957, 1968 Repl. Yol.) Art. 63 (the Act). B & M was a subcontractor and, in order to perfect its lien, was required to give notice to the owner, as provided for by the Act, § 11 (a) : “If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected, or his agent, the person so do-' ing work or furnishing materials, or both, shall not be entitled to a lien unless, within ninety days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien.” Sometime in early March, 1967, B & M’s counsel had ³⁹ the following- letter, dated 16 February 1967, delivered to each of the owners : “Please take notice that the undersigned, on behalf of B & M Welding and Iron Works, Inc., Gaithersburg, Maryland, intends to file a mechanics lien against property owned by you and known as Riverdale Plaza and further identified as Parcel A, ‘Riverdale Plaza’, as shown in Plat Book W.W. 58, at folio 13, one of the Land Records of Prince George’s County, Maryland, for labor and materials provided for the said B & M Welding and Iron Works, Inc., in connection with a shopping center being erected upon said property. “This lien claim arose by virtue of a contract between the said B & M Welding and Iron Works, Inc., and Cohen-Himelfarb and Associates, Silver Spring, Maryland, the general contractor for the said construction.

The amount of this lien claim is $29,831.28. “The total sum due for labor and materials was $175,353.28, of which $145,522.00 has been paid to date, leaving a balance due and payable of $29,831.28.” Berens says that for a notice to be deemed sufficient, it must specify the time when the work was done or the materials were furnished, and that we have so held in District Hgts. Apts., Inc. v. Noland Co., 202 Md. 43 , 95 A. 2d 90 (1953) and Welch v. Humphrey, 200 Md. 410 , 90 A. 2d 686 (1952). B & M replies that substantial compliance with the notice requirement is all that is necessary and relies on G. Edgar Harr Sons v. Newton, 220 Md. 618 , 155 A. 2d 480 (1959) and Mashkes v. Jakenjo, Inc., 220 Md. 457 , 154 A. 2d 439 (1959) and reminds us that Cutler and Shapiro, The Maryland Mechanics’ Lien Law — Its Scope and Effect, 28 Md. L. Rev. 225 (1968) at 241, relying on Harr, concludes that “ [a] pparently the exact time when ⁴⁰ the work was performed or the materials supplied need not be specified.” As we see it, a careful reading of Harr and Mashkes makes it clear that exact time need not be specified if the notice makes it clear that the work was performed or the materials supplied at some time within 90 days. In both Mashkes and Harr there was sufficient information in the notice to inform the owner that the last work had been done or the last materials supplied in the performance of an indivisible contract within the 90 days next preceding the date of the notice.

To the same effect are Parkway Estates, Inc. v. Burnham, 210 Md. 64 , 122 A. 2d 326 (1956) and Treusch v. Shryock, 51 Md. 162 (1879). While , it is true that the mechanics’ lien law is to be liberally interpreted in favor of mechanics and material-men, Ca ton Ridge, Inc. v. Bonnett, 245 Md. 268 , 225 A. 2d 853 (1967); Giles & Ransome, Inc. v. First Nat’l Realty Cory., 238 Md. 203 , 208 A. 2d 582 (1965) ; Reisterstown Lumber Co. v. Reeder, 224 Md. 499 , 168 A. 2d 385 (1961); T. Dan Kolker, Inc. v. Shure, 209 Md. 290 , 121 A. 2d 223