Palmer Park Ltd. Partnership v. Marvelite, Inc.

Finan, J., delivered the opinion of the Court. In this appeal the owner of an apartment house complex (appellant) seeks to overturn a judgment on a mechanic’s lien in the amount of $13,223.34, with interest at six per cent per annum dating from September 11, 1967, awarded the supplier (appellee) by the Circuit Court for Prince George’s County. The material supplied, which was paint, was used by the subcontractor, G & H Paint Company, a partnership, on the Palmer Park Apartments. The main thrust of the appellant’s several contentions is that the notice of intention to claim a mechanic’s lien, as required by Maryland Code (Repl.

Vol. 1968) Art. 63, § 11, was inadequate. 1 The appellant, which is a limited partnership, owned a large apartment complex, known as Belle Haven East Apartments and Palmer Park Apartments, consisting 'of thirty-five buildings and appurtenances located in Prince George’s County. George M. Kline, one of the two general partners was also president of Southeastern ¹²³ Builders, Inc., a general contractor engaged by the appellant to build apartments. (We think this latter fact to be irrelevant to the merits of the case in view of Himelfarb v. B. & M. Weld. & Iron Wks., 254 Md. 37, 42 , 253 A. 2d 842 (1969) and the cases cited therein). pThe G & H Paint Company (G & H) was a painting subcontractor on the job to whom Marvelite, Inc., appellee, began selling paint in the fall of 1966. There was no dispute but that the paint, which was the material supplied, and the billing for which was the basis for the mechanic’s lien, was delivered by the appellee to the apartment site.

There was no written contract between the appellee and G & H. For several months G & II paid for the paint supplied to the job, and on February 8, 1967, the appellant wrote to Mr. Kline informing him that G & II was current with their account and that “our relations with G & H Paint Company, Inc. have been excellent throughout the time we have been selling them.” Shortly after this letter was written, due to financial difficulties, G & H stopped honoring its bills. In late March or early April, the appellee informed G & H that it could no longer supply paint for the job unless the general contractor was aware of the indebtedness to the appellee. G & H refused to go along with this proposal and from April 5, 1967, to May 9, 1967, stopped purchasing paint from the appellee. In May, G & H resumed buying paint from the appellee and the appellee began to promptly send monthly statements to the general contractor’s superintendent, a Mr. Wakefield.

Between April and August of 1967, Mr. Wakefield discussed G & H’s unpaid account with the appellee. Particularly, in June 1967, a Mr. Rodbell, Vice President of the appellee, met with Mr. Wakefield, representing the appellant, and the general partners of G & H, at which time the unpaid account was discussed. Mr. Wakefield on behalf of the appellant promised that he would see that the appellee was paid half of the account in July and the other half in August of 1967. In August, when the account was still unpaid, Mr. Wake- ¹²⁴ field notified the appellee that the general contractor would not make any more payments to G & H unless a release was obtained from the appellee, so as to assure that the appellee would be paid.

However, no payment on the account was forthcoming and the appellee continued to deliver paint to the job site until August 9, 1967. Thereafter, the appellee discussed the situation with Mr. Kline, a general partner of the appellant and president of the general contractor. As late as September 7, 1967, Mr. Kline again discussed the unpaid bill with the appellee. Five days later on September 12, the appellee wrote a letter to Mr. Kline in his capacity as president of the general contractor reciting that the balance of $13,223.34 was still due and owing “by G & H Paint Co., Inc.,” and the letter referred to the June meeting attended by the supplier, the contractor and G & H. There was a further discussion between appellee and Mr. Kline by telephone on October 9.

On October 13, the appellee sent by certified mail, its notice of intent to claim a mechanics’ lien to “Messrs. George G. Kline and Earl W. Kintner, general partners-Palmer Park Limited Partnership-112 Brawner Building-17th Street, N. W., D. C.” The body of the notice reads as follows: “Gentlemen: In Accordance with Article 63, Section 11 of the Annotated Code of Maryland, notice is hereby given that Marvelite, Inc., intends to claim a Mechanics’ Lien for furnishing materials in the amount of $13,223.34 on the lot and improvements formerly known as Palmer Park Apartments now known as Belle Haven East Apartments at or near George Palmer Highway and Belle Haven Drive, Lanham, Prince George County, Maryland of which you are the owners. This property is described at least in part in the land records of Prince George County in Liber 104 folio 150 and liber 3225 and folio 286. ¹²⁵ Pursuant to the above cited Section of the Code, this notice is given within ninety (90) days of the furnishing of the materials. The contract upon which the lien is claimed and upon which it will be filed is a contract between Marvelite, Inc., and G & H Painting Co., Inc. a .Subcontractor of South Eastern Builders, Inc., the general contractor.

Although the materials have been supplied, payment has not been received. Article 63, Section 13 of the Annotated Code of Maryland states in part that: ‘. . .it shall be lawful for the owner to retain from the cost of such building the amount which he may ascertain to be due to the party giving such notice.’ Very truly yours, Marvelite, Inc. Franklin Rodbell Vice-President” After the appellant received the above notice under date of October 13, 1967, no further payments were made to G & H. The mechanic’s lien was recorded on December 11, 1967, and the bill of complaint to enforce the lien was filed shortly thereafter. Appellant attacks the adequacy of appellee’s Section 11 notice of intent to claim the mechanic’s lien on several fronts. He contends that the notice was deficient because the name of the subcontractor was incorrectly set forth, the property upon which the material was used was not adequately described, the material used was not set forth with sufficient particularity, and the statement “that notice is given within 90 days of the furnishing of the materials” is not a sufficient statement when materials are supplied under two separate contracts.

In order to assess the sufficiency of appellee’s notice of intent, one must look to the purpose of Section 11 within the entire me ¹²⁶ chanic’s lien statute and the gloss which our prior decisions have put upon the section. When the owner of a building receives a supplier’s notice of intent, he has the right granted by Section 13, Article 63 to retain the amount claimed in the notice from the general contractor. The theory of the section was ably set forth in Bounds v. Nuttle, 181 Md. 400, 406 , 30 A. 2d 263 (1943) : “The mechanic’s lien law was passed to cover just such a situation and to protect material men. The theory of it is that the owner gets the benefit of the material, and he has control of the money.

If he negligently and carelessly pays the money out to the contractor without taking precautions to see that it is applied to the payment of the materials which go in the building, then he must stand the loss rather than the material man, who has no opportunity to protect himself once he has delivered the materials.” See also T. Dan Kolker, Inc. v. Shure, 209 Md. 290 , 121 A. 2d 223 (1956), and William Penn Supply Corp. v. Watterson, 218 Md. 291 , 146 A. 2d 420 (1958). While the purpose of Section 11 is rather clear, the information which must be included in the notice of intent has been the subject of controversy. It has been contended that Section 11 requires only a-statement that the material man intends to file a claim. This argument was recently put to rest in Himelfarb v. B & M Weld, and Iron Wks., 254 Md. 37 , 253 A. 2d 842 (1969).

There it was argued that “§ 11 (a) requires only a notice of ‘intention to claim such lien’; that its notice did this and ‘that the time when the materials were furnished or the work done’ is a part of the claim as prescribed by § 19 of the Act.” Id. at 41. The Court rejected this argument relying largely on Welch v. Humphrey, 200 Md. 410 , 90 A. 2d 686 (1952). Himelfarb concluded that “our decisions have been consistent in reading into the notice called for by § 11 the requirements of § 19 respecting the structure of the claim.” Id. at 41. ¹²⁷ With this history in mind, we must