Richardson v. Saltz

Constable, J., delivered the opinion of the Court. The appellants filed a bill in equity to enforce a mechanics’ lien, and, upon the Court sustaining a demurrer filed thereto, this appeal was taken. ³⁹⁰ It is conceded by the allegations of the bill that no notice of an intention to claim a lien was served upon the appellees within sixty days from the date of furnishing the materials, as provided for by section 11 of Article 63 of the Code, but it is claimed by the appellants that, because of the situation of the parties as .presented by the facts alleged in the bill and admitted by the demurrer, no such notice was necessary to perfect their lien. That is, while admitting the force that must be given to the many decisions of this Court wherein it has consistently been held that the party furnishing materials shall not be entitled to a lien for materials furnished to any person other than the owner of the lot on which the building may be erected, or his agent, unless the party furnishing the same or his agent shall give notice, within sixty days of furnishing the same, to the said owner or his agent, of the intention to claim the lien, but urge that the facts do not bring this case within the provisions of that section. If, however, the facts do bring it within the operation of said section, the Court below was correct in its ruling upon the demurrer, for such notice is obligatory upon the part of the one claiming the lien, and, because of its omission, the proceedings would be fatally defective.

Conway v. Cook, 66 Md. 290 ; Reindollar v. Flickinger, 59 Md. 469 ; Hill v. Kaufman, 98 Md. 251 ; Wehr v. Shryock, 55 Md. 336 ; Frederick Bank v. Dunn, 125 Md. 392 . The bill alleges that the appellees are the owners of a lot in the town of Crisfield, where they also resided, and that they contracted with one Fred B. Hobson to erect a building upon said lot, and that Hobson contracted with the appellants for the furnishing of all the stone work to be used in the building; that the stone was consigned to Hobson, under the contract between the appellants and Hobson, the last delivery being on July 29th, 1914; that on August 29th, 1914, after a considerable quantity of the stone had been used in the building the appellees took possession of the uncompleted building, and one of the appellees finished the building, ³⁹¹ using the remainder of the stone therein; that on the 9th of September, 1914, the appellants wrote one of the appellees, stating that they had been informed that he had taken over the contract for the building and notifying him that they had furnished the stone for the same and requesting payment from him. This letter makes no mention of an intention to claim a lien, and there is no contention that it does comply with section 11. It is further alleged that no reply was received to this letter nor to like ones sent later; and that the appellees continued the building to completion paying to the workmen employed by Hobson the arrears owed by Hobson, and did not pay to Hobson anything on his contract price after August 29th, 1914, the date of the taking over of the contract.

The lien claim filed upon the same day as the bill,, December 14th, 1914, recites in full the letter from the appellees to Hobson, dated August 29th, 1914, notifying him that since he had faded in the performance of his written agreement with them, they were going to take possession and complete the building according to the contract and hold him responsible to his agreement. We have substantially embodied in the above the allegations of the bill, omitting the conclusions of law there contained, for, of course, the demurrer does not admit the correctness of those conclusions. Can the builder Hobson be considered as the agent of the appellees in the purchase of the materials, and thereby render a notice unnecessary under the language of the Act ? The doctrine of agency has been fully recognized in Weber v. Weatherby, 34 Md. 656 .

In that case the owner and builder agreed to sell a house in an unfinished condition, and to have it completed like one adjoining. The purchaser deposited a sum of money as a