Prima Paint Corp. v. Ammerman

Hammond, C. J., delivered the opinion of the Court. The parties are in agreement that the trial judge’s statement of the facts and the decisive issue in the case cannot be improved on and, although the appellant, the mechanic’s lien claimant, strongly disagrees, we find that the judge’s conclusion that the appellant had not proved its case to be equally sound. Judge Childs said: “In this proceeding to enforce a mechanic’s lien for materials supplied, the plaintiff’s cause would seem to hinge entirely upon the date of final delivery of the last paint delivered by the plaintiff for use by defendant’s predecessor in title. Evidence of this particular delivery depends entirely upon the plaintiff’s business records, for no one on behalf of the plaintiff or one connected in any way with the transaction professed to have personal knowledge or recollection of the details of the final shipment.

There is no question as to the receipt of the notice or as to the authority of the person to whom the notice was sent or as to the legal sufficiency of the notice, itself. “One Jan Strompf, trading as Jan Strompf Construction Company, in 1967 was engaged in constructing an apartment complex known as ³⁹⁴ Fountain Green Gardens in Laurel, Maryland. He had subcontracted the painting for this project to Mr. Gerald Golden, trading as G and H Painting Company. Mr. Golden at the time was involved in several other contracts in the Laurel and Baltimore areas. Strompf became a bankrupt, and Prima went unpaid.

A notice by Prima Paint Corporation dated August 16, 1967 to the defendant Fountain Green Corporation, predecessor in title of the defendant Ammerman, was received on the same date. Article 63, Section 11 of the Annotated Code of Maryland, 1968 Replacement Volume, requires a person furnishing materials to give notice in writing to an owner within ninety days after furnishing the materials. Consequently, if the last delivery by the plaintiff were actually made on May 17th, the notice was one day late. (May 17, 1967 and August 16, 1967 both fell on Wednesday.

Neither day was a legal holiday.) However, if the delivery were made on May 18th the notice was timely. Plaintiff’s case must stand or fall upon its invoice number 6953, Plaintiff’s Exhibit 3, which bears a typed order date of May 18th, 1967 and a handwritten date of invoice May 17, 1967. “Plaintiff's counsel urges upon the court that the date of invoice is actually May 19, 1967. This the court cannot accept. The handwritten figure seven appears at least six other times in the unit price and extension columns.

Likewise, in the extension column appears the figure nine. The person who wrote the figures in the date of invoice block and the extension column had a distinctive manner in writing the figure seven and when all sevens appearing on the invoice are compared (for instance the figure 4697 appears in the extension column, the fifth line from the top) the figure nine and the figures ³⁹⁵ seven are completely distinctive and dissimilar. The court must therefore attempt to resolve the question as to when delivery was actually made. Invoice 6953 bears the notation “pick up.” An uncompleted copy of this invoice was signed by Earl Hunt who testified that he at the time was picking up paint for G and H but he could not recall the date. ❖ * ❖ “The burden of proving the cause of action to enforce mechanic’s lien lies upon the claimant.

District Heights Apartments v. Nolan Company, 202 Md. 43 . Likewise, where there is an ambiguity in a document it will be most