United States Tile & Marble Co. v. B & M Welding & Iron Works, Inc.

Singley, J., delivered the opinion of the Court. This case involves another of the problems which haye risen in connection with the construction of Riverdale Plaza Shopping Center in Prince George’s County. See Himelfarb v. B & M Welding & Iron Works, Inc., 254 Md. 37 , 253 A. 2d 842 (1969). For the purposes of this opinion, we shall adopt the agreed statement of facts contained in the appellant’s brief. 1 “Plaintiff-Appellant, United States Tile and Marble Company, Inc. [(U.S. Tile)] performed various work as a tile subcontractor pursuant to two contracts entered into with Cohen-Himelfarb Associates, general contractors, on a proposed shopping center to be located in Prince George’s County.

The Plaintiff, through counsel, addressed a letter dated November 18, 1966, which letter was stipulated as the only notice of intention to claim Mechanic’s Lien sent by the Plaintiff in this case. It is further stipulated that Defendant Herbert A. Himelfarb actually received this letter on November 22, 1966, within 90 days of the completion of the last work by the plaintiff. It was further stipulated that at the time the letter was sent, the owners of the ⁸³ property where the work was performed were Herbert A. Himelfarb, Harold S. Himelfarb and Ben A. Williamowsky, as joint tenants. It was further stipulated that at the time the contracts were executed and the time the notice was sent and received by Herbert A. Himelfarb, he was also a partner in the general contracting firm of Cohen-Himelfarb Associates, a partnership. “At the time of trial before the Honorable Robert B. Mathias on June 24-25, 1968, the Court permitted an amendment by Plaintiff of the Mechanics Lien filed by the Plaintiff to include as the joint owners, Herbert A. Himelfarb, Harold S. Himelfarb and Ben A. Williamowsky.

Thereupon, counsel for Defendant Frederick W. Berens, Inc. and Defendants Herbert A. Himelfarb, Harold S. Himelfarb, and Ben A. Williamowsky, being all of the interested adverse parties to the Plaintiff, moved for a ‘directed verdict’ and dismissal of the Amended Bill of Complaint on the sole ground that the notice of intent to claim the lien was defective. After argument, Judge Mathias granted the Motion and dismissed the Amended Bill of Complaint for failure of Plaintiff to give proper notice of intent to claim Mechanic’s Lien. “It is further agreed by the parties that the Plaintiff had proven the sum of Three Thousand Five Hundred Dollars ($3,500.00) in bona fide damages and money due and owing prior to the time of dismissal of the claim and the granting of Defendants’ Motion. It is from the Order dismissing Plaintiff’s claim for failure to give proper notice of intent to claim a Mechanic’s Lien that this appeal is taken.” The letter of 18 November 1966, referred to in the statement of facts, was sent by counsel for U.S. Tile to Cohen-Himelfarb Associates, “attention: Herbert A. ⁸⁴ Himelfarb.” The inclusion of the full text of the letter is not essential to the disposition of this case. While it set out the amounts of U.S. Tile’s claims — $3,963.50 and $3,378.00, it did not specify the time when the work was done or when the materials were furnished, which we have held to be mandatory if notice given to an owner or his agent, under Maryland Code (1957, 1968 Repl.

Vol.) Art. 63 § 11 (a) : “If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected, or his agent, the person so doing work or furnishing materials, or both, shall not be entitled to a lien unless, within ninety days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien,” is to constitute a valid notice. Himelfarb v. B & M Welding & Iron Works, Inc., supra; District Heights Apts., Section D-E, Inc. v. Noland Co., 202 Md. 43 , 95 A. 2d 90 (1953) Welch v. Humphrey, 200 Md. 410 , 90 A. 2d 686 (1952); 2 Poe, Pleading and Practice (Tiffany Ed.) § 738 at 717. The notice was defective in another respect, since it was addressed to Cohen-Himelfarb Associates and not, as § 11 (a) requires, to the owner. Although we need not reach the point, it might be argued that the letter contained no categorical expression of an intention to claim a lien. 2 U.S. Tile answer these contentions by arguing that it should prevail notwithstanding a defect in the notice, because no notice is required if the contract was with Himelfarb as owner.

Art. 63 § 11 (a) requires such a notice only when a contract for furnishing work or ma ⁸⁵ terials is made with “any other person except the owner of the lot on which the building may be erected, or his agent.” U.S. Tile concedes that, should it prevail in this contention, its lien would attach only to the interest of Himelfarb who held title as joint tenant with the other co-owners of the property. A similar contention was advanced in Reindollar v. Flickinger, 59 Md. 469 (1883). In that case, Flickinger owned a one acre lot in Carroll County and was a member of the partnership of Flickinger and Reif snider which undertook the erection of a small