Mimsco Steel Corp. v. Holloway Concrete Construction Co.

Per Curiam. Himelfarb v. B & M Welding and Iron Works, Inc., 254 Md. 37 (1969), cited with approval in Palmer Park Limited Partnership v. Marvelite, Inc., 255 Md. 121 (1969), and U.S. Tile & Marble Co. v. B & M Welding and Iron Works, Inc., 254 Md. 81 (1969), is dispositive of the determinative issue here presented. Why it was not cited by the appellees or by the chancellor or mentioned by the appellant (Mimsco) we are not in a position to say. In question is the adequacy, Code (1968 Repl.

Vol.), Art. 63, § 11 (a), of Mimsco’s notice of its intention to assert a mechanics’ lien. In pertinent part the notice, which was served on the appellee Metropolitan Baptist Temple, Inc. (Temple), on 21 June 1967, is as follows: “This is to place you on notice that * * * MIMSCO * * *, pursuant to a contract with Holloway Concrete Construction Company, delivered certain products to * * * Holloway * * * for the construction of the * * * Temple. These were iron and steel products delivered on the following dates pursuant to the following invoice numbers and carrying the following charges: ¹³⁹ August 30, 1966 Inv. No. 5675 $ 900.00 September 26, 1966 Inv.

No. 5752 3,136.35 October 6, 1966 Inv. No. 5841 1,656.65 October 24, 1966 Inv. No. 5941 128.00 October 27,1966 Inv. No. 5968 1,224.00 December 9,1966 Inv.

No. 6342 5,723.00 and delivery and erection of [the] fire escape on March 22, 1967. As of this date, there exists an unpaid balance * * * of * * *($4,564.22). “You are hereby placed on notice that pursuant to [Code, Art. 63] * * * we are * * * declaring an intent to place a mechanics lien on the property and improvements of * * * Temple located at the above-referred to address.” It will at once be observed that the notice was not given within 90 days from 22 March 1967. Mimseo filed its lien in the Circuit Court for Montgomery County on 21 August 1967. In its (amended) bill of complaint to enforce the lien Mimseo alleged that the last materials were delivered “and/or” the last labor was performed “on March 24, 1967.” Obviously the notice was given within 90 days of 24 March.

The appellees demurred to the amended bill of complaint mainly on the ground that