Thomas v. Barber

Eccleston, J., delivered the opinion of this court. The scire facias in this case issued from the Superior Court of Baltimore city, for the purpose of enforcing a claim under the lien laws. The writ recites, that on the 10th of April 1855, William E. Barber and Samuel W. Barber filed a claim in the said court, “against Jacob F. Kridler and John H. Thomas, for the sum of $95.31, on a three-slory brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street in said city, with a depth of about fifty-three feet, and on the lot whereon said tenement is erected, and the ground adjacent thereto and used therewith, of which the said John H. Thomas was the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber, to the said Jacob F. Kridler, as contractor, builder and architect.” The writ was issued on the 11th of April 1855, and on the return-day the sheriff made the following return: “Copy served on John H. Thomas, defendant in possession, and summoned. Non est, Jacob F. Kridlerj also adver ³⁸⁷ tised according to law, as per advertisement hereto annexed.

(Signed,) Samuel Hines, sheriff. ’ ’ The advertisement states the issuing of the writ, describing the property and the lien-claim as set forth in the scire facias, calling Thomas “the owner, or reputed owner;” and stating the lumber to have been sold to Kridlcr, as contractor, builder and architect.” It then gives notice to all claimants and persons interested to be and appear in the court, “to show cause, if any thing they know or have to say, why the said sum of money above named should not be levied of the said buildings to the use of the said William E. and Samuel W. Barber, according to the form of the act of Assembly in such case made and provided.” Thomas appeared and filed three pleas: 1st. That the materials were not furnished, and that the sum of money was not due and unpaid as alleged. 2nd. That the contract for furnishing the said materials was made with an architect, builder, or other person than the owner of the lot on which the building was erected, and that the plaintiffs did not, in manner and form as required by the acts of Assembly in such case made and provided, give notice of the same, and of their intention to claim the benefit of the alleged lien. 3rd. That no lawful sufficient claim of lien was filed as required by the acts of Assembly.

Upon issues based on these pleas the cause was tried. The lien-claim, as filed, does not appear in the record, but, by agreement, is to be used as if it liad been inserted. It is as follows: “ William E. Barber and Samuel W. Barber, vs. Jacob F. Kridler and John H. Thomas. — Mechanics Lien. — In the Superior Court of Baltimore city. William E. Barber and Samuel W. Barber, of the city of Baltimore, Maryland, claim a lien for the sum of $95.31, on a three-story brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street, in said city, with a depth of about fifty-three feet, and ³⁸⁸ on the lot whereon said tenement is erected, and the ground adjacent thereto, and used therewith, of which the said John H. Thomas was, at the time of the delivery hereinafter mentioned, the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber to the said Jacob P. Kridler, as contractor, builder and architect, of the kind, at the prices, and delivered at the respective times stated in the account hereto annexed and filed herewith.

McLean & Williams, Attorneys for Claimants, Mr. Jacob F. Kridler and John H. Thomas, Bot, of Barber Sr Brother, 1854. May 25.-625 ft. 8x5 w. pine, 20.2-1-, . $15 63 Hauling, ----- 37 |16 00 July 11. — 1080 ft. 3x9 hemlock, 16.If, - 18 90 Hauling,..... 50 19 40 <e 12. — 1080 ft. 3x9 hemlock, 16.If, - 18 90 Hauling, ----- 5Q 19 40 Aug- 15. — 208 ft. 3x4 w. pine, 26.2f, - 5 72 Sept. 12. — 254 ft. 4x4 callings, 2, - - - 5 08 960 ft. 3x4 hemlock, 16.If, - 16 80 Hauling, ----- 50 22 38 Nov. 17. — 159 ft. 4x4 panel, 4£, - - - 7 16 Oct. 25. — 1500 ft. laths, w. p. — Jacob cart, 37-1,-, 5 25 $>95 31 Received to be recorded 10th day of April 1855. Same day recprded and examined, Per, Edward Dowlinq, Clerk,” On the 5th of January 1855, the following notice was served upon the present appellant: “John JS, Thomas, Esq. — Sir, You are hereby notified, that wp intend to claim the benefit of the lien provided by acts of Assembly, for materials furnished, and work done for and about the erection and construction of a certain three-story building, situate on the westwardly side of McCulloh street, being the first house north-west from Hoffman street, in the ³⁸⁹ city of Baltimore, of which Jacob F. Kridlerwas the architect, contractor and builder, and you the owner, or reputed owner. Very respectfully yours, <fcc., Barber &• Bro., Lumber Merchants.” “Baltimore, Dec. 28, 1854.” Inasmuch as our decision is based upon the proceedings already mentioned, a further statement of the evidence contained in the bill of exceptions is deemed unnecessary.

At the trial the defendant submitted four prayers, all of which, as presented, were refused; but the court granted the third, (marked 4th,) with a qualification.