Jarden v. Pumphrey

Bartol, C. J., delivered the opinion of the Court. The questions in this case arise upon a seire facias, on a claim of lien, filed by the appellee against the appellants. It was proved at the trial that the appellee was employed on or about August, 1868, by a certain Edward D. Preston, a builder and contractor, for a stated sum, to paint a certain house on Barre street, mentioned in the proceedings, which Preston had contracted to build and complete by January 1st, 1869, for Amelia Jarden, wife of Samuel Jarden; that Samuel ³⁶³ was the agent of his wife in the premises, and, as such agent, made the contract with Preston for building the house; that the appellee was engaged on said painting, on and off, till April, 1869, when, on the 19th of that month, he served a written notice of his intention to claim the benefit of the lien under the statute, upon Samuel Jarden. Evidence was offered on the part of the appellants to prove that the lot of ground on wdiich the house was built was the separate property of Mrs. Amelia Jarden, and that she was having the house built with money she had inherited from her parents; that the notice given by the appellee of his intention to claim a lien was served upon Samuel; but no such notice was served personally upon Amelia Jarden, his wife, nor did he inform her of the fact of its service upon him.

But the Court below refused to admit this evidence, and was of opinion that the service of notice upon Samuel Jar-den, agent of Amelia, his wife, was valid and legal notice to her. This ruling forms the subject of the first bill of exceptions. The appellants contend that, under the Code, it was necessary to serve the notice upon Mrs. Jarden personally, and that notice to her husband was not sufficient. The provisions of the Code relating to notice are as follows, Art. 61, sec. 10: Where a building shall be erected on a lot of ground, belonging to a married woman, by her husband or some person by him employed, the said lieu shall not attach unless notice thereof be given to such married woman in writing within sixty days after doing such work, or furnishing such materials, or both, as the case may be.

Sec. 11: 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 or owmers of the lot on which the building may be erected, or his or their agent, the person or persons so doing work, or furnishing materials, or both, shall not be entitled to a lien, unless within sixty days after furnishing the same, he or they, or his or ³⁶⁴ their agent, shall give notice in writing to such owner, or owner's or agents, if resident within the city or county, of his or their intention to claim such lien. ' Construing both these sections together, we think it is quite clear that the Legislature did not intend to alter or change the general and familiar principle of the law, that notice to an agent in relation to the subject matter embraced within his agency, is equivalent to notice to the principal. In tliis case it was proved that Samuel Jarden