Frederick County National Bank v. Dunn

93 A. 984, 125 Md. 392, 1915 Md. LEXIS 220

• Court: Court of Appeals of Maryland
• Decided: February 12, 1915
• Status: Published

Opinion

Stockbridge, J.,

delivered the opinion of the Court.

When John K. MeTver was awarded the contract for remodeling the Frederick County Rational Bank building he sublet portions of the work to be done. Joseph B. Dunn & Sons had submitted an estimate for doing the marble and tile work in the building, in which the various items to be furnished and performed by them were specified, and a lump sum named for these of $1,760.70. This proposition was made on April 9th, 1912, before the contract was actually awarded to MeTver. Some discussion appears to have arisen between Dunn and MeTver whether at one point marble or tiling was to be used, owing to an apparent ambiguity of the •specifications. Mr. Teach, the architect, was called on to construe the language, which having been done resulted iii a reduction of the price named by Dunn from $1,760.70 to '$1,750, and on this basis the proposal of Dunn was accepted ■on February 27th, 1913. The performance of the work was begun by Dunn about April 7th, 1913, and completed, ae cording to the interpretation placed by I)unn & Sons on the contract by May 19th, on which date their workmen left Frederick and returned to Baltimore. A bill was rendered by Dunn & Sons to Mclver promptly thereafter, for the contract price of $1,750.

When Dunn’s employees left Frederick there was one toilet room, located between the first floor and the basement, in which no tiling had been done either for the floor or side walls. This had been omitted for the reason that in the belief of Dunn & Sons it was not included in the work which they had contracted to do, and did not appear in the plans and specifications attached to and made a part of the contract between Mclver and the bank, with which plans and specifications they were entirely familiar.

The architect was Alfred C. Leach; he “made the plans and specifications and supervised the work for the owners,” according to his own testimony. He was thus for many purposes the agent of the owner. A month or six weeks after Dunn’s employees had left the building, completed as they supposed, Leach asked Mclver, the general contractor, why he didn’t tile that toilet, and he (Mclver) said it wasn’t in the contract. Leach replied that it was in the contract and would have to be tiled. Mclver communicated with Dunn in regard to the tiling of this room and Dunn took the same position that Mclver had taken, that the tiling of this toilet was not included in the plans and specifications of the contract. This raised an issue between Leach, representing the owner, and the contractor. Such a contingency was provided for in the contract as follows: .

“Should any discrepancy exist between the plans and specifications or any parts of either, or should the language of any part of the contract or specifications be ambiguous or doubtful, the architect shall decide as to the true intent and meaning, and all questions, disputes or differences as to any part or detail of the work shall be referred to the architect for his decision.”

The next steps are thus described by Mr. Mclver in his evidence: “The architect 'ruled we should, insisted that we should, and I did it to avoid litigation, to get my work through and have it accepted, and I did it without compensation from the bank.” He does not testify, however, that Dunn & Sons ever acquiesced in the decision of Leach, and he distinctly says that- Dunn did all of the work required of him under his contract, but because of Leach’s decision Mclver made an arrangement with Dunn to do the tiling of the floor and walls of this toilet, for which Mclver was to pay the sum of $91, or about half of the total cost of the work to be performed, and Dunn assumed the balance. This last work was done between the 21st and 26th of July, and on the last named date a bill was rendered to Mclver by Dunn for the $91. Both Mclver and Leach testify that the work done by Dunn was in every way satisfactory.

Having received from Mclver only $350 up to August 7th, Dunn & Sons served a notice on the bank of their intention to claim a mechanics’ lien, and on the following day a lien was filed. The claim consisted of three items, the original contract price of $1,750, the delivery on May 21st of five bags of cement,, $2.50, and the tiling of the basement toilet in July, $91.

The time within which notice of an intention to claim a mechanics’ lien must be given is fixed by Article 63, section, 11 of the Code, and where notice is not given within the time prescribed no lien can be maintained. In this case if the proper date from which to compute the time was the doing of the last work in May, the lien was filed too late to be given effect, while if the proper date was July 26th it was in ample season.

It is firmly settled by the decisions, both in this State and elsewhere, that if there are two separate and distinct contracts, even though they have relation to the same building, they can not for the purposes of a lien be coupled together so as to extend the date for the filing of the lien down to the time of the last material delivered or work performed under the latest contract, but that as to each, the time for the giving of a notice'or the filing of a lien is dependent, for its being in season upon the particular contract under which the work is done, and conversely that when there is but a single entire -contract, the time is to be computed from the last material delivered, or work done, in connection with that contract, -even though that be small in amount or far removed in point -of time from the balance of the work. Ger. Luth. Church v. Heise, 44 Md. 469; Watts v. Whittington, 48 Md. 356; Miller v. Barroll, 14 Md. 173; Maryland Brick Co. v. Spilman, 76 Md. 341; Fulton v. Parlett, 104 Md. 62; Phillips on Mechanics’ Liens, sec. 229; Farnham v. Richardson, 91 Me. 559; McIntire v. Trautner, 63 Cal. 429; Miller v. Wilki nson, 167 Mass. 136.

The crucial question in the present case, therefore, is whether the contract was an entire one, or whether there were two separate and distinct contracts. There is no suggestion that the bank ever made but one contract, or that .anyone acting on the part of the bank did so. The question in this case seems to have arisen because of the insistence on the part of the architect, who for that purpose was the agent of the bank, that the work which was- not done until the month of July was a part of the original contract between the bank and Mclver, and no matter for what reason, it is also clear that this construction was acquiesced in by Mclver. There was no new agreement between between the hank on the one hand and the contractor or sub-contractor on the other. The arrangement between Mclver and Dunn is testified to have been in the nature of a compromise rather-than a clear, definite contract. It was a matter of adjustment between themselves in which the bank was in no way involved or affected. So far as the bank had any occasion whatever to know, the decision of their agent, Leach, was accepted and fully, acquiesced in by both Mclver and Dunn, and the work which remained to be done in July was work which was fully provided for in the contract and which it had a right to require.

This is not a ease where a material man, by a small delivery of material long after he has complied with his agreement, seeks to extend the time within which he can claim the advantage of the statute. Dunn had left the work in May believing it to have been fully completed, and he is afterwards, called upon, at the instance of the bank, not to. do some new and distinct work, but to complete work which he had agreed to do under his contract. If it was work which should have been done under that contract, then the-contract was not fully performed until the latter part of July, and the time within which he could give notice under the statute ran from the completion of the work in July, and that it was so included, had been decided by the architect, who was expressly empowered to make the decision. The-notice given, therefore, on the 7th of August was in ample-season to comply with the statute.

There is still another reason which leads to the same conclusion. There are a large number of cases which lay down the rule that where the owner insists that a building is not completed and that he will not accept it, owing to some imperfection, he is estopped thereafter from denying that the building was completed prior to the date of correcting such-imperfection. Hubbard v. Lee, 102 Pac. 528; McIntire v. Trautner, 63 Cal. 429; Rieflin v. Grafton, 115 Pac. 851; Minn. Trust Co. v. Gt. Northern R. R., 74 Minn. 30; Shaw v. Fjellman, 72 Minn. 465; St. Louis Natl. Stock Yards v. O'Reilly, 85 Ill. 546.

A case very similar to the present one and in which thismle was laid down is that of Stidger v. McPhee, 62 Pac. 332. As applied to the present case, the rule is concisely this—that the bank through its agent having insisted that the tiling of the particular toilet room was embraced within the terms of the original contract so as to avoid the payment of any charge as for extra work upon it, will not now be heard to claim that it was not included in that contract so as to make a new contract requisite for its completion.

With respect to the item in the account for $91 no lien can be allowed for that. The work for which that account was rendered if properly included in the original contract was covered by the contract price of $1,750, and if not properly included in that was nevertheless so accepted by both the owner and contractor Mclver, and any further agreement which he may have made with Dunn in respect to it, was a personal arrangement for which no lien was maintainable.

The item of $2.50 for cement was hardly referred to in the testimony given in the case nor in the argument. This appears to have been furnished in May, and unless it was required for the performance of the contract, the notice was insufficient, and if it was required in connection with that contract was covered by the general contract price of $1,750, but there is one other factor affecting this item. Payments aggregating $350 were made by Mclver to Dunn on account of the work done under the sub-contract. There do not appear to have been any specific directions given as to the application of this money when it was paid, and Dunn saw fit to make the item of $2.50 a charge against the money which he received, and no objection was raised to this by Mclver, and under such circumstances no good reason appears for disturbing the decree of the Circuit Court for Frederick County on account of this item.

There was some reference made in the briefs to the fact that Dunn had received a note of Mclver for $1,000, but' that can in no way affect this controversy, as the proof fails to show that the note was received in payment of that amount. Code, Art. 63, sec. 3; Brick Co. v. Spilman, 76 Md. 337; Wix v. Bowling, 120 Md. 265; McLean v. Wiley, 176 Mass. 233.

The decree appealed from will acccordingly be affirmed.

Decree affirmed, with costs.