Sodini v. Winter

Miller, J., delivered the opinion of the Court. In this case, a proceeding by scire facias was instituted to enforce a mechanics’ lien for bricks furnished by the appellees ¹³³ for, and used in, the erection of a house, of which the appellant, Sodini, was owner, and Leiter was the contractor and builder. The owner appeared and pleaded nine pleas, of which the fifth and ninth were ruled bad upon demurrer. At the trial, five exceptions were taken by the appellant, and a motion in arrest of judgment was also made and overruled.

The appellant’s counsel has made no point, either in his brief or in his oral argument, upon the first, second and third exceptions, or in support of the ninth plea, or of the motion in arrest. All objection to the Court’s action, in these particulars, was very properly abandoned. This leaves for our consideration and review the sufficiency of the fifth plea, the correctness of the ruling in the fourth exception, and the rejection of the appellant’s second, fourth and sixth prayers. The fifth plea is, that the materials were furnished by the plaintiffs on the individual and personal credit of the contractor, and not on the credit of the lot and buildings mentioned in the writ.

It does not aver the materials were not furnished for the house, or that the plaintiffs did not know at the time of furnishing them, they were to be used in its erection. This peculiar lien does not originate in contract; it is purely a creature of positive statutory enactment, to be maintained and enforced to the extent and in the mode which the statute prescribes. Every building, says the law, erected, repaired, re-built, or improved, shall be subject to a lien for the payment of all debts contracted for work done or materials furnished for or about the same, and the mode of its enforcement in all cases is specially prescribed. Under these provisions, it has been held that the material man, who furnishes materials to a contractor, has a subsisting lien upon the building in the intermediate time between the furnishing of the materials and the expiration of the six months limited for filing his claim, though no claim has been filed by him.

Franklin Fire Ins Co. vs. Coates & Glenn, 14 Md., 285 . The lien may be expressly waived, and the question, whether it was waived in this case, was presented by issues taken on the ¹³⁴ sixth and eighth pleas, but the law provides that no person having such lien shall be considered as waiving the same by granting a credit or receiving notes or other securities unless the same be received as payment, or the lien be expressly waived. In a case like the present, of a material man furnishing materials to a contractor to be used in the erection of a building, the' law contemplates a contract of purchase between these two, and that credit- may be given to the latter, and whilst there is no contract, express or implied, between the former and the owner, or credit given to the owner, yet the law provides a lien upon the building as a security for the material man in case the contractor fails to pay for the materials, and this is done without affecting the liability of the contractor on his contract of purchase, which still exists. Indeed, it was the liability to, and frequency of, loss sustained by mechanics and dealers in consequence of the employment of a middle man or contractor which induced the Legislature to give a lien on the building.

Such being its character, and such the provisions of law for its enforcement, the mere fact that the materials were furnished on the credit of the contractor and not on the credit of the building, is not, in our opinion, either a waiver or an extinguishment of the lien. It follows, the demurrer to this plea was well sustained, and the appellants’ fourth prayer, which presents the same question, properly rejected. From the fourth exception, it appears the defendant offered testimony to the effect that, in a conversation between Sodini and