France v. Woolston

9 Del. 557

Opinion

The claim, of a contractor to do the work and furnish the materials in painting, glazing and varnishing a house, is within the purview of the mechanic lien law or statute. And when they are to be paid for in gross, no bill of particulars of the kind and the amount of the materials furnished is required, nor is it necessary to state when the furnishing of them was commenced and finished in such a case, if the dates of commencing and completing the contract are stated.

“Two two-story brick houses (with mansard roof) adjoining each other on a lot at the southeasterly intersection of Delaware Avenue and Rodney Street in the City of Wilmington, with the number of feet on each of them and on the other two lines of it stated,” is a sufficient description of the several pieces of ground on which the houses are respectively situated.

In filing the claim of a partial contractor to do the work on, and furnish the materials for, a specific part of the building, begun after the commencement of it, and finished before the erection and completion of the entire building, the time of the commencement and of the completion of it, need not be stated, but only the times when the work done and the materials furnished by him were begun and finished .under his contract.

If judgment be entered, in the absence of an affidavit of defence by the owner of the building, on a claim the contractor has erroneously filed within sixty days after the completion of his contract, it will not be set aside on the application of a purchaser of the premises at sheriff’s sale on a mortgage executed by the owner to another and recorded after he had commenced, but before he had completed his contract on the building.

In these cases which were heard together, Houston, J., delivered the opinion of the court.

These cases arise under the mechanic lien law or statute passed March 29, 1871, on rules granted to show cause wherefore the judgments hereafter mentioned in favor of James France and Henry Evans respectively against Abram Woolston obtained under it in this court, should not be disallowed and stricken from the record, and which having been heard at the last, were held under advisement until the present term of the Court. In the first case the statement of the claim and affidavit of France was filed in the office of the Prothonotary on the 3d day of May 1871, stating in substance, First, that James France was the party claimant, and Abram R. "Woolston was the owner and contractor, and that the contract was made with Abram R. Woolston, the owner and contractor; Secondly, that the amount claimed to be due to the said claimant was $725,31 being a debt contracted for work and labor and materials furnished upon the buildings owned by the said Abram R. Woolston, and for which the said Abram R. Woolston was the contractor, as by the said claimant’s bill of particulars hereunto annexed more fully appears, and which was as follows :

To James France, Dr.

1871.

April 24. For work done at and on, and material furnished for two new Houses on the south east corner of Delaware Avenue ' and Rodney Street in Wilmington, Delaware. The work begun on the 4th day of October 1870, and finished this day, to wit, April 24, 1871.

Painting and glazing and furnishing material for both said Houses by estimate and agreement ......$535.00

Painting and paint on 18 window shutters in addition to agreement - ■ - - 27.00

Reglazing windows broken by plasterers - 19.31

Graining and varnishing doors and shutters inside ......120.00

Painting and glazing second story of each House Back Building. - 34.00

That the sum of $362.65-|- was due him for work and labor and materials furnished for each of the adjoining houses at the south-easterly corner of Delaware Avenue and Bodney Street respectively; Thirdly,that the claimant began to work and labor and furnish materials on the 4th day of October 1870, and finished on the 21st day of April 1871; Fourthly, that the buildings upon which the said claimant furnished work and labor and materials, were located as follows, to wit; two two-story brick houses (with mansard roof) adjoining each other on a lot at the south-easterly intersection of Delaware Avenue and Bodney Street in the City of Wilmington, the said lot being about 109 feet on Delaware Avenue by 142 feet on Bodney Street, 109 feet on the south-easterly line, and 60-j- feet on its south-easterly boundary line; Fifthly, that the said work was performed, and the said materials were furnished by said claimant on the credit of the said two buildings, houses or structures above described; Sixthly, that the amount of said claim exceeded twenty-five dollars, and the same had not been paid, or secured to be paid to the claimant. And upon which a writ of scire facias was issued returnable at the May Term 1871, and on which the claimant recovered judgment for $725.31 and costs, at that term.

In the other case the statement of the claim and affidavit of Evans was filed in the office of the Prothonotary on the 5th day of June 1871, stating in substance as follows: First, that the name of the owner or reputed owner of the two houses respecting which this action was commenced, was Abraham B. Woolston and the name of the contractor was Henry Evans, and that the contract was made with such owner or reputed owner : Secondly, that four hundred and fifty dollars (two hundred and twenty-five dollars on each house) was the amount or sum claimed by said contractor to be due him for work and labor done, and materials furnished in making and erecting the stairs in said houses: Thirdly, that the said work and labor and furnishing of said materials were commenced on the 7th day of November 1870, and finished on the 13th day of March 1871; Fourthly, that the said two houses were located at the southeast corner of Delaware Avenue and Rodney street in the city of Wilmington and State of Delaware, on two lots of ground adjoining each other, and having a front on Delaware Avenue of about 109 feet and running back southerly the same width between Rodney street and a line parallel thereto about 142 feet; Fifthly, that said work and labor were performed and the materials furnished on the credit of the said houses; Sixthly, that the said claim exceeded twenty-five dollars, and that the same had not been paid or secured to be paid to the claimant or contractor aforesaid. Upon which a writ of scire facias was issued returnable to November Term 1871, and which was returned at that term by the sheriff served personally on Abram R. Woolston, the defendant, September 4th 1871, and a copy of the writ affixed on the front door of each of said described buildings, neither of them being occupied as a place of residence, June 7th 1871. It further appears from the record in this case, that at that term exceptions were filed to the claim and a rule was laid on the motion of counsel for the defendant, to show cause wherefore it should not be stricken from the record, but which on the following day was discharged by the Court, the counsel for both the plaintiff and defendant assenting thereto; and on the same day, December 8th 1871, on motion of the plaintiff’s attorney, judgment was rendered for the plaintiff for want of an affidavit of defence, amount to be ascertained by the Prothonotary, and which on the 12th of December 1871 was ascertained by him to be $450 with interest from the 13th of March preceding.

On the 16th day of November 1870, Abram R. Woolston executed a mortgage of the two houses and lots to Casper Kendall for the sum of $5000 which was duly recorded on the 22d day of Kovember in that year, on which judgment was recovered in this Court for the sum of $2500 and costs, on the 7th day of December 1871. Subsequently the two houses and lots were sold upon a levari facias issued on a mortgage of them executed by Abram R. Woolston to James L. Devon and by Mm assigned to George F. Brady, returnable to the May Term 1872 of this Court; and at which term on affidavit filed that he was advised and believed that the said judgments recovered by France and Evans respectively against Woolston were irregular and void, obtained a rule in each case to show cause wherefore the said judgments should not be disallowed and stricken from the record. The property sold at the sheriff’s sale for the sum of $9510.00 which remains in the officer’s hands.

The second exception in the same case is, that the statement is defective because it omits to set forth a bill of particulars of the kind and amount of materials furnished by him; but the statement in this respect clearly imports upon its face, that the same were to be paid for, not by the day, or the quantity of material furnished, but by agreement of the parties the whole was to be paid for in gross or at a certain stipulated price; and such being the case no bill of particulars was necessary or required by the act, and the statement is, therefore, sufficient without it.

• The third exception is,that it does not set forth the time when the furnishing of said materials was commenced and finished, which is untrue in point of fact, for we know that the furnishing of the paint, putty and varnish for the purpose, must have begun and ended with the work of putting them on the doors, windows and shutters of the houses, which are .both expressly stated in it.

The next three exceptions which we shall now notice collectively, and consider together in this case, are to the following effect: that the claim is not stated and set forth with sufficient precision and particularity as to times, dates, prices, quantities and amounts, or descriptions of the several pieces of ground on which the houses are respectively situated, or the locality of each of the said houses, with such descriptions as may be sufficient to identify the same, are equally untrue and unsound in our opinion, and may, therefore, be dismissed with the remark simply that we consider the statement of the claim sufficient in each of these respects.

In the second case before mentioned, of Henry Evans v. Abram R. Woolston, the exceptions filed are substantially the same as those we have already considered and disposed of in the preceding case, with this difference and distinction merely; that the first exception alleges that the statement of the claim filed in the latter case neither sets forth a contract in gross for the work and labor done, and the materials furnished, nor a bill of particulars of the materials furnished; and secondly, that Evans, the claimant, not being a contractor in contemplation of the statute, had not filed the statement of his claim within sixty days from the completion of the work and labor performed by him, and the last delivery of materials furnished by him, as was required by the act. As to both of which we only take occasion now to say briefly, that the words of the statute do not imperatively require a bill of particulars to be set forth in the statement of the claim in every case, and where by the con tract the claimant is to do the work and furnish the materials for a gross sum, or is to be paid for the whole a certain stipulated price, we do not see any special necessity for a bill of particulars; and such we consider the contract in this case to have been from the import of the terms employed in the statement of it. It would be bettor, however, in all such cases that it should be so distinctly stated, and not be left to inference or implication alone. In relation to the other exception we will only add that the claimant was unquestionably the contractor in contemplation of the statute in this case, and has very properly so denominated himself in the statement filed by him, and with equal propriety and correctness delayed filing it until after the expiration of sixty days from the completion of 'the said houses, if he did so, although he has not so stated it. But all we have before said in the preceding case in reference to the effect of the judgment entered by default against the defendant for the want of any affidavit of defence, applies with equal force and propriety in this case, on each and all of the exceptions filed in it; and therefore the rule granted in this case must also be discharged, with the like order as to costs.