Mt. Airy Plumbing & Heating, Inc. v. Grey Dawn Development Co.

Sybert, J., delivered the opinion of the Court. On March 29, 1963, the appellants, Mt. Airy Plumbing and Heating, Inc. and County Floor Service, Inc., each filed a mechanics’ lien claim against the property of Reba Kurtz located in Baltimore County for labor and materials furnished by them as subcontractors during the construction of a dwelling on the property. On May 16, 1963, the appellee, Grey Dawn Development Company, Inc. (which, it was stipulated, was acting individually and as agent for Mrs. Kurtz, the owner), filed a bill in equity in the Circuit Court for Baltimore County, pursuant to Maryland Rule BG75 a, to compel the appellants to prove the validity of their liens or have them declared void.

The Chancellor, after taking testimony, decreed on December 18, 1963, that the liens were null and void, and the lien claimants appealed. In July 1961 Johnnie M. Martinez entered into a contract with the Grey Dawn Development Company, Inc., under which he became the general contractor for the construction of a prefabricated house on Mrs. Kurtz’s property. The contract provided that Martinez was to be paid in three installments as the work progressed, and a final one of $2500 upon completion of the house. (It was conceded that at the time of trial all but the last installment had been paid.) Martinez subcontracted the plumbing and heating work to Mt.

Airy Plumbing & Heating, Inc., and the flooring and bathroom tile work to County Floor Service, Inc. The two subcontractors are closely related to each other, having a common president. They had subcontracted work on various construction jobs from Martinez for some years, and were working on other Martinez jobs at the time they entered the Kurtz contracts. The evidence indicates that they treated all of their charges against Martinez as his “open account”, and that it was their practice to request installment payments from him as work progressed, applying payments received to the oldest charge in the “open account”. ⁴¹ Mt. Airy and County Floor began their work on the Kurtz house in August 1961.

After most of their work was completed, County Floor stopped work on the house on November 29, 1961, and Mt. Airy did likewise on December 4, 1961. According to testimony of Albert K. Ross, president of the two corporations, and of Woodrow Franklin, vice-president and manager of Mt. Airy, the work was stopped because they had not been paid by Martinez, and they deemed it unwise to furnish more work and materials until they received a substantial payment.

Ross and Franklin also testified that after they had had several conversations with Martinez the two subcontractors decided to go back to work and complete their respective jobs because he requested them to do so, explaining that he would not receive any more money from the development company until the house was finished, at which time they would be paid. Martinez testified he could not recall any such conversation, but admitted he may have made the statements. In September 1962 the appellants returned to the house, gaining access through a broken window, and completed their work by October 2, 1962. Ross testified that County Floor waxed the hardwood floors, installed the last SO1 square feet of ceramic tile in the bathroom, installed towel bars and soap dishes and repaired certain damages caused by other subcontractors.

According to Franklin, Mt. Airy did the following work: “final completion of the job and a cleanup of everything”, the oil furnace was checked out and a defective control was replaced, some pipe was run to tie the water system into a pump which pumped water from a well (water had not previously been brought into the house), the pump was started and the water lines checked for leaks and then the system was drained because winter was approaching. Franklin stated that although the water pump had been installed earlier it could not be checked because there was no electricity in the house. According to the two mechanics’ lien claims, in the performance of the work mentioned a Mt.

Airy employee worked four hours on September 27, 1962, and four hours on October 2, 1962, and County Floor’s employees performed four, nine and one-half, and two hours of work on September 28, 29 and October 2, 1962, respectively. There was no contradiction as to the dates, hours ⁴² spent or types of work done, or that the work was required under the subcontracts. The two subcontractors gave written notice to Mrs. Kurtz of their intention to claim liens within ninety days after October 2, 1962, and filed their lien claims within six months after the same date, pursuant to Code (1957), Art. 63, secs. 11 and 23. The Chancellor held that the work done by the two subcontractors in September and October, 1962, was of too minor a character to extend the period within which a mechanics’ lien must be filed, and, in holding the liens void, he stressed the fact that the work had not been requested by the owner or her agent.

However, we are constrained to conclude that the learned