Treusch v. Shryock

Robinson, J., delivered the opinion of the Court. This is a proceeding to enforce a mechanic’s lien upon certain houses belonging to Treusch, the appellant, for materials furnished O’Connor, the contractor. The right to enforce a lien in cases of this kind is not founded upon privity of contract with the owner, but rests solely upon statutory law. The lien attaches upon delivery of the materials, and upon compliance on the part of the material man with the provisions of the law, and this too, irrespective of a contract either expressed or im ¹⁷⁰ plied on the part of the owner.

The evidence offered therefore by the appellees to prove the nature of the contract with O’Connor, the builder, under which the materials were delivered, was admissible in evidence, although Jcnoivledge of such contract was not brought home to Treusch, the owner. The second exception presents, however, a different question. The last item in the account, for materials is dated November 4th, and one of the questions in dispute between the parties, was whether the houses were finished and accepted by the owner at the time the materials charged in this item were delivered. The appellees offered to prove that on the 3rd of November they called on O’Connor and inquired whether the houses were finished and whether he was ready to settle, to which- he replied, he was “ not ready to settle and would want right smart more lumber for the houses.” To the- declarations of O’Connor as tending to prove that the houses were unfinished, the appellant, Treusch, objected.

Now it is very clear that such declarations could not be offered in evidence against Treusch, unless made by authority either express or implied. The relation between the owner and builder is not that of principal and agent, and although the building is liable for materials furnished, this liability is not founded upon the principle of agency between the parties, but is the creature oí positive law. Where a lien is claimed upon the property of the owner for materials furnished a contractor, and the question is whether the building was finished and accepted, at the time of the delivery of the materials charged, we know of no principle upon which the declarations of the contractor, not made in the presence of the owner, can be offered in evidence to bind the latter. The Court erred therefore, in admitting such declarations.

Although the relation between the parties is not one of agency, yet the statute provides that the building shall ¹⁷¹ be liable for materials furnished the contractor, and his receipt for such materials being part of the res gestee, and being also against his interest, may be offered in evidence to prove delivery. There was no error in admitting the receipts offered in the third exception. We see no objection to the notice of intention to claim, a lien. The object of such notices is to enable the owner to retain whatever money may be due the contractor, and to apply the same to the payment of the lien claimed.

The law requires that it shall be signed by the party furnishing the materials or his agent. The notice is not liable to objection on the ground that it was signed by the attorneys of the appellees, provided it was done with the authority of the latter. In regard to the claim to be filed by the material man, the Code requires it shall set forth: 1st. The name of the party claiming the lien, the name of the owner, and the name of the contractor. 2nd.

The amount claimed to be due, the kind and amount of materials furnished, and the time when such materials were furnished. 3rd. The locality of the buildings and the number of stories of the same, or such other matters of description as may be necessary to identify the same. Sec. 19, Art. 61, Code. All these matters are clearly and distinctly set forth in the claim filed by the appellees.

We come now to the questions of law involved in the several prayers granted and in those refused by the Court. And here it is necessary to understand precisely the matters in dispute between the parties. The appellants contended that the appellees were not entitled to the lien claimed— 1st. Because the materials were furnished to the contractor under separate and distinct contracts, and that notice of intention to claim a lien had not been filed within the time prescribed by the statute. ¹⁷² 2nd.

That the delivery of the materials charged on the 4th November, was a fraudulent delivery and made for the purpose of bringing the account within the time allowed the appellees to give notice of their intention to claim a lien. . 3rd. That the houses were finished and accepted by the appellant as owner, and that the