Quinby Co. v. City of Wilmington

10 Del. 26

• Court: Superior Court of Delaware
• Decided: July 5, 1875
• Status: Published

Opinion

The Court,

Houston, J.,

charged the jury: That the facts in the case were not disputed, and as the only question involved in it, and on which it depended before them, was a question of law exclusively, he would proceed to state to them what the law of the case was, and by which they should be governed in making up their verdict

What may be the particular provisions in the mechanics’ lien laws of other States for filing notice merely of such liens without formally filing the claim itself on which it depends we are not informed, but there is no provision whatever of the kind in our statute on the subject to authorize or warrant the filing of notice of any such lien except by filing the claim itself to which it is incident in the mode and manner expressly provided for and required in it. And in a case like this, which is the claim of the plaintiffs as material men against the city of Wilmington for certain materials furnished for the repair of a mill belonging to it, called the City Mill, and which were furnished by them not directly to the city, but to one William H. Foulk, a carpenter, for the purpose, who had contracted with the city to do the repairs and furnish the materials, that provision of our statute imperatively requires that the claim of a party furnishing materials in such a case on the credit of the building to be repaired, either to the owner of it, or to any such contractor, shall be stated and filed in the office of the prothonotary of the superior court in and for the county wherein such building is situated within sixty days from the last delivery of materials furnished for the purpose, to entitle such a party to the benefits of the statute and to such a lien upon the property. And we took occasion in a former case before this court under the statute, France v. Woolston, 4 Houst. 564, to state the obvious reasons for this imperative requirement of the statute, and, among others, that it was evidently considered contrary to wisdom and sound policy that such an incumbrance should be allowed to exist for any greater length of time without thus being made a matter of public record. And that, therefore, suit should be instituted on every such claim in the special mode directed by the statute within that time.

According to the statement of the claim filed by the plaintiffs and their book of original entries, the delivery of the materials by them was commenced on the 22d day of November, 1873, and was finished on the 6th day of December, 1873; and that the statement of their claim for them, amounting to four hundred and forty-one dollars and eleven cents, with interest from January 1st, 1874, was filed in the office of the prothonotary of this court, as appears by the record, on the 3d day of February, in that year, and within sixty days from the last delivery of the materials furnished by them. But it also appears from the evidence, and is not disputed, that they received and accepted from William H. Foulk, the contractor, to whom they had furnished the materials under their contract with him, on the 6th day of January, 1874, his promissory note for six hundred and twenty-five dollars and thirty-one cents, payable in three months from that date to their order, and which it is admitted included as a portion of the consideration for which it was so given by him and received by them the amount of their present claim as stated against the defendant, the city of Wilmington, for the materials so furnished and delivered by them. They afterward had the note discounted at the Farmers’ Bank, in Wilmington, but Foulk, the maker, failed to pay it at maturity, and they had to take it up afterward at the bank. The city had, however, paid Foulk six hundred and ten dollars and twenty-four cents in full of his contract with it for the materials and his work in repairing the mill as early as the 11th day of December, 1873. Under these circumstances it is not necessary, in our opinion, to inquire whether they furnished the materials on the individual credit of Foulk, or, as they have since alleged, on the credit of the building that has been repaired with the materials. By the term of credit given in the promissory note it was not payable until the 9th day of April, 1874, and we are clearly of the opinion that during that time and until the maturity of the note their right to institute any suit for the claim or demand, either under the statute or otherwise, against any one, either Foulk or the city, was suspended, and inasmuch as the sixty days within which their claim could alone be rightfully filed under the statute must necessarily have elapsed before the three months’ credit on the note had expired, the credit thus given constituted in effect a complete waiver of their legal right to proceed under the provisions of it to recover a judgment and secure a lien upon their claim for the materials against the defendants. For nothing short of the recovery of judgment on the claim so stated and filed completes and secures the lien in such a case under the statute. The plaintiffs are therefore not entitled to recover in the action, in our opinion, and your verdict should accordingly be for the defendants.

The defendants had a verdict.