Watts v. Whittington

Miller, J., delivered the opinion of the Court. This is a proceeding in equity to enforce a mechanics’ lien for bricks furnished in the erection and construction of a certain house, of which the appellant was owner or reputed owner. The bill of particulars or account accompanying the lien claim and filed with it, is made out against the appellant, and shows items for bricks commencing on the 17th of June, 1873, and the last item charged is of the 7th of October, 1873. This account also shows that items consisting of common bricks were charged as having been furnished and delivered at short intervals between the 17th of June and the 12th of July.

There is then a long interval to the 6th of October, when ³⁵⁶ on that and on the following day there are two charges for paving bricks amounting to $18. The lien claim was filed on the 16th of March, 1874, within six months after the date of the last item, but more than six months after the 12th of July, 1873. One of the principal defences relied on is that the common or house bricks were furnished by the complainants under a contract with one Wilson, and not with Watts, the appellant, and that the latter contracted with the complainants only for the two items of paving bricks, and hence there can be no lien on account of the furnishing of the common bricks, inasmuch as the claim for them was not filed in time. This is without doubt a good defence if sustained by the proof; for it is well settled that if materials are furnished under distinct contracts, though to be used for the same purpose, or by the contractor in executing one and the same contract with the owner, the right to take the lien must date from the time of furnishing the different parcels of material, and not from the last item in the account.

German Lutheran Church vs. Heise & Co., 44 Md., 470 . We have examined the evidence in the record, and our conclusion from it is that the bricks, or at least the common bricks, were furnished under a contract with Wilson, and that Watts only ordered the two items of paving bricks. The preponderance of testimony is to that effect, Wilson and Watts both so testify. Amos, one of the complainants, testifies to the contrary.

In this state of direct conflict in the testimony, we must accept that of the two witnesses as entitled to the greater