Maryland Brick Co. v. Dunkerly

Page, J., delivered the opinion of the Court. The questions in this case arise .upon the bill of the Maryland Brick Company to enforce a mechanics’ lien against the four houses and lots mentioned in the proceedings. The firm of Swain & Banks claim a lien prior in time to that of the Brick Company, and the members of that partnership are made parties. The validity of both these claims is disputed, and forms the subject of the contentions of the parties. ist.

As to the claim of the Maryland Brick Company. It is insisted the lien was not filed within the period re■quired by the statute ; that is, within six months after the materials were furnished. Art. 63, sec. 23; Code. The bill of particulars shows that all the bricks charged for were delivered more than six months before the filing of the lien except the single item of August the twenty-fourth, and it is contended that the materials charged in this and the six preceding items were furnished under other and distinct contracts than were those of the other items of the bill.

The account shows that the Brick Company began to furnish bricks on the 20th of November, and continued to do so, at short intervals up to the thirtieth of May, when there was an interval of nearly three months, until the next delivery, on 24th of August. Now, in the case of Trustees v. Heise, 44 Md. 470 , it was held that in the absence of evidence of an express antecedent contract made with respect to the exact quantity of materials or work to be furnished or done “ the character of the account, the time within which the work was done or materials were furnished, and the object of the work or materials may afford proper grounds for the presumption, that the work was done or the materials were furnished with reference to an understanding from the commencement, that such work or materials should be done or furnished if required by the builder ²¹¹ and in such case it is from the last item in the account that the time within which to take the lien should date. But, on the other hand, when the materials are furnished for separate and distinct purposes, or at different times, and at considerable intervals, or under distinct contracts, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different parcels of material and not from the last item. Here the account shows a long interval between the date of the last item and of those that precede, and can therefore furnish no presumption that the belated items were furnished under a continuous contract.

On the contrary, the long interval from 30th May to the 24th August seems to warrant an inference directly to the contrary. We are not without proof, however, as to the contract. Mr. Bokee, the president of the Brick Company, testified that the contract was-to furnish the brick for the erection and completion of seventeen houses on Mosher street and three on Carey. There was no stipulation as to the number of bricks, but the prices were fixed at $9, $17.50 and $25 per thousand, according to the kind used.

The account shows that on the 10th, 16th and 30th of May bricks were furnished at ten dollars per thousand, and the proof shows that this charge was so made because these bricks were “ selected for paving purposes ” and were specially ordered for those purposes. There is nothing in proof to show any “understanding from the commencement” that the bricks costing ten dollars per thousand should be furnished. The original contract called for bricks at $9, $17.50 and $25 per thousand, and it could not be, that under this a charge could have been made at ten dollars per thousand. It would seem, therefore, that these bricks were furnished under a separate and distinct contract, and cannot properly be allowed as a part of the lien.

These observations apply only to the bricks charged for at ten dollars. But in May there were delivered 500 salmon, and on 24th August thirteen hundred and fifty red and salmon at the contract price. We find nothing in the ²¹² record to rebut Mr. Bokee’s statement that these were delivered in pursuance of the antecedent contract, to furnish brick to erect and complete the twenty houses. These two items must therefore be regarded as parts of the running account and charges for material that it was understood from the beginning were to be furnished.

The lien claim was filed within six months from the date of the last item and was therefore in time. It is not requisite to entitle the Brick Company to maintain its lien for it to show that the bricks were actually used in the buildings, provided it bé proved that under its contract with the builder they were furnished to be used in the erection of the buildings. We need not repeat what has been heretofore said by this Court upon this point, in a recent case, when the subject was fully discussed. Maryland Brick Co. v. Spillman, 76 Md. 343 . 2nd.

The claim of Swain & Banks. The proof clearly establishes that the materials furnished by this firm were so furnished under one antecedent contract, for one entire purpose, viz., for seventeen houses on Mosher street and three on Carey, and were delivered