Jakenjo, Inc. v. Blizzard

Henderson, J., delivered the opinion of the 'Court. This appeal is from a decree in a mechanic’s lien proceeding filed by the appellee, allowing the claim, after the Chancellor ⁴⁸ had overruled a demurrer challenging the sufficiency of the notice of intention given to the appellant corporation. The amended petition, seeking a monetary decree, alleged that the appellee, Blizzard, had entered into a subcontract with the builder, Rochkind Construction Co., Inc., to install tile in a building which Rochkind had contracted to erect upon the property of the appellant. The notice of intention filed therewith alleged that Blizzard’s work was completed on November 25, 1957.

On January 17, 1958, Blizzard mailed a registered letter to Jakenjo, Inc., containing a proper notice of intention, but the letter was returned, marked by the post office “unclaimed”. On February 5, 1958, he mailed a registered letter containing the same notice to Louis E. Carliner, who is listed in the records of the State Tax Commission as the resident agent of Jakenjo, Inc. The letter was receipted for by Carliner’s secretary on February 6, 1958, by signing his name, and her name as agent. According to his recollection, he was out of town on that day. On February 12, 1958, Carliner by letter acknowledged receipt of the registered letter and notice of intention, but claimed that the notice was “not in accordance with the applicable sections” of the Code.

In the meantime, Blizzard had recorded his mechanic’s lien on January 24, 1958. A proceeding to foreclose the lien was instituted on February 20, 1958, which was served by the sheriff upon Carliner, as resident agent, on February 24, 1958. At the trial below it was shown that the work upon the subcontract had been completed on November 13, 1958, but the job was not inspected and finally approved until November 25, 1958, on which date Blizzard billed the general contractor. The appellant argues that since the work was completed on November 13, 1958, the ninety-day period permitted by Code (1957), Art. 63, sec. 11, expired on February 11, 1958.

It contends that the requirement of notice prescribed by that section is not met by service upon the resident agent of a corporation,, and in any event is not met if the notice is receipted for by the secretary of the resident agent, and not by him personally. Code (1957), Art. 63, sec. 11, provides: “If the contract ⁴⁹ 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 doing 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.” The appellant argues that the only authority of a resident agent is to accept service of process, as provided in Code (1957), Art. 23, sec. 96 of the corporation law. But this overlooks sec. 99 of that article, which provides: “Any notice required by law to be served upon any corporation of this State * * * by personal service upon a resident agent or other agent or officer of such corporation, may be served upon such corporation in the manner provided in § 97 of this article * * Section 97 deals with substituted service upon the State Tax Commission. See also sec. 96 (d).

Code (1957), Art. 23, sec. 2 (11) defines “resident agent” as “an individual actually