Swift & Upson Lumber Co. v. W. L. Hatch Co. , 115 Conn. 494 ( 1932 )

From the finding, it appears that A. P. Leavitt had a contract for the construction of a building on Washington Street, New Britain, owned by The W. L. Hatch Company. The plaintiff and all the defendants, other than the Hatch Company, were subcontractors of Leavitt in the construction of the building, and all the subcontractors fall within the class from whom a notice of intent to claim a mechanic's lien is necessary to entitle them to claim such a lien. The sum of $6610.48, which includes interest and costs as far as The W. L. Hatch Company is concerned, is due from it to the contractor, when all liens on the real estate are discharged. The plaintiff, The Swift Upson Lumber Company, and six other of the subcontractors have valid mechanic's liens upon the property; and the amount due to them is more than sufficient to absorb the entire balance owed by the owner to the principal contractor. The other eight defendants attempted to file mechanic's liens upon the property, the total amount of their claimed liens being in excess of $5000. The notices of intent to claim liens filed on behalf of these eight defendants with the owner, The W. L. Hatch Company, were filed within the time required by law, but none of them were "attested copies" of the originals, as required by General Statutes, § 5107, appended in the footnote.^* In respect to some of them, other irregularities were also claimed, which it is unnecessary to consider. The Hatch Company does not complain because of the insufficiency of the notices, and has suffered no loss or prejudice as a result thereof, but the plaintiff and the other subcontractors who have valid liens complain of the failure of these appellants to attest the copies of the notices served on their behalf on the owner, and seek to prevent a reduction of the amount to be realized by them from their liens by having those of the appellants declared invalid. The trial court held that the liens of these eight defendants, who have appealed, were ineffective, because "attested copies" of the notices of intention to claim liens were not served upon the owner as required by the statutes.

The only question involved in the appeal taken by these defendants is the correctness of the court's conclusion. The written copies of the notices of intention to claim liens served on behalf of these eight defendants on the owner were not attested by anyone or in any manner, and clearly were not "attested copies" as required by the statute. McGuire v. Church, 49 Conn. 248,249. A case closely in point as to its facts isWhite v. Washington School District, 42 Conn. 541,545. In that case, we held that the provisions of the statute must be complied with in order to enable a subcontractor to fix a lien upon the property of the owner; and that a mechanic's lien could not be created by agreement or by waiver of the owner to the prejudice of a party who had secured a valid lien upon the property by compliance with the statute. We there said: "The right to fix a lien on buildings and land, for a debt of this description, is created by positive law, and the acts required to be done must be done to entitle the party to the benefit of the law. A lien cannot be created by agreement or by waiver, surely not to the prejudice of a third party, who has complied fully with the requirements of the law." In McGann v. Sloan, 74 Conn. 726, 727, 52 A. 405, we said that subcontractors, in the erection of a building "could . . . have acquired no valid lien unless within sixty days from the time they commenced to furnish materials or render services they gave written notice thereof, and of their intention to claim a lien, in the manner provided by the statute, to the then owner." In Kelly v. Alling, 84 Conn. 487, 492, 80 A. 782, we held that an owner would not be justified in holding back payments after they had become due the contractor by the terms of the original contract by a notice other than that provided by the terms of the statute. The principle that a mechanic's lien is the creation of statute, and that the provisions of the statute must be complied with to entitle a party to its benefits is recognized also in Kinney v. Blackmer, 55 Conn. 261, 263,10 A. 568, and Purcell, Inc. v. Libbey, 111 Conn. 132,137, 149 A. 225. Analogous cases are McGuire v.Church, supra; Lorch v. Page, 97 Conn. 66, 69,115 A. 681; and Commercial Credit Corporation v. Carlson,114 Conn. 514, 517, 159 A. 352.

As the law days fixed in the judgment have passed, it will be necessary for the Superior Court to enter a new judgment. Tilden v. Century Realty Co.,112 Conn. 439, 441, 152 A. 707.

There is no error, and the cause is remanded to the Superior Court with direction to enter a new judgment fixing a new law day.

In this opinion MALTBIE, C. J., and HINMAN, J., concurred; HAINES and BANKS, Js., dissented.