Hess v. Poultney

10 Md. 257

• Court: Court of Appeals of Maryland
• Decided: December 15, 1856
• Status: Published

Opinion

Le Grand, C. J.,

delivered the opinion of this court.

This is a proceeding under the lien law of 1838, chapter 205, and its various supplements. The facts may be thus stated. On the first day of June 1852, a scire fardas was issued against nineteen houses erected in Baltimore city, on Portland street, and belonging to Henry S. Taylor and John O. Reid, for {Materials alleged to have been furnished to the said houses, at the instance of Samuel Hess, the contractor. There were two liens laid, one of which was against Hess alono, and was left for record at the clerk’s office on the loth day of May 1852. The second claim for lien against Taylor and others, was filed on the 25th day of May 1852. The record shows, that a contract for the building of the houses was entered into between Taylor, Hess and Reid, on the 28ih day of March 1851. The account for materials furnished commenced in January of the same year. On the 15th day of May 1852, S. II. Tagarl, counsel of the plaintiffs, gave the following notice to Henry O. Taylor, one of the owners of the houses: “Dear sir: — On Saturday last, i laid a lien on a. lot of ground on Portland street, on account of materials furnished in the erection of the houses on said lot, by Messrs. Brown and Poultney. I have learned since, that you had an interest, in this property, and I shall not, of course, issue a sci. fa. until 1 see you upon the subject.” This letter was postmarked the 18th of May 1852, and was evidently erroneously dated. Tt states, that the lien liad been laid on the Saturday preceding, when in fact it was laid on the 15th day of May.

On'this state of facts the defendant, offered four prayers, the second and third of which were granted, and the first and fourth rejected. The plaintiff offered several prayers, all of which were granted.

We think the court erred in the rejection of the defendants’ first prayer, which, in its nature, was conclusive of the case. We hold the notice to be insufficient under the first section of the act of 1845, chapter 176. That section requires not only that notice should be given of the claim, but also, “of Ms, her or their (claimants’) intention to claim, the benefit of the lienf Whatever else may be said of the notice the omission of this compliance with the requirements makes it insufficient.

■ Although the lien laws are to be construed independently of the rule of the common law which requires all acts in derogation of it to be interpreted strictly, nevertheless the words of the law must be substantially complied with, and in a case like this, where the precise words are furnished by the statute and are wholly omitted, the omission is fatal.

Judgment reversed and procedendo refused.