Okisko Co. v. Matthews , 3 Md. 168 ( 1852 )

Tuck, J.,

delivered the opinion of this court.-

The prayers offered by the defendant below are' predicated on the supposition- that the buildings against which distinct liens are claimed, are'separate houses, and do not constitute one establishment, in such a sense as will support a lien against them jointly. The'evidence on this subject was offered by the plaintiffs, whose witness-stated that “all the buildings were such as it is usual for manufacturing companies to erect on their property for the purposes of their establishments, and that all constituted one establishment; and that the lumber was purchased for the use of the company, for their establishment, and not for any particular house.”' If the testimony had been conflicting, the first, third, fourth and fifth prayers could not have been granted, because they assumed, that the buildings were separate and distinct, in contemplation of the lien laws, without submitting that question to the jury, a fortiori, then, when the assumption is made in the absence of evidence to-support it. The court could not know, judicially, any thing of the operation of such factories, or determine what buildings and machinery were necessary to carry them on. In this respect the case does not differ from Ragan vs. Gaither, 11 G. & J., 472, recognized in 1 Md. Rep., Grove vs. Brien, 438, and Brown vs. Ellicott, 2 Md. Rep., 75. See also Gaither vs. Martin, (ante 146.)

We are also of opinion, that the second prayer was properly refused. Where materials are furnished for several houses, and some are delivered within six months before filing the claim for lien, and are used in one of the houses only, the lien against all remains, though the claimant in enforcing his lien must apportion his demand among them, and is restricted in his recovery against the several houses to the amount claimed against them respectively. If the lien was lost because some of the materials were supplied at an earlier period, owners, by using the articles furnished within six months on one house, might defeat the lien against the others, and claimants would be obliged to show that some portion of their goods, furnished within that time, had been used on each house against which a lien might be claimed. The person who sells the materials is not presumed to know anything of the' condition and progress of the buildings being erected or repaired. He credits the party with reference to certain houses together, and the law gives him a lien against all, to be thereafter apportioned, provided he makes his claim within six months after the work shall have been finished or the materials furnished. 1838, ch. 205, sec. 3. The construction contended for on the part of the appellant might lead to gross evasions of these laws, and deprive those whom they were designed to protect of all benefit from them. And besides, the lien is preserved until six months after the materials are furnished, or after the completion of the work.- If this instruction had been given the jury would have been authorised to find against the claimant, if the goods had been delivered more than six months, although the particular house on which these materials were used may have been completed within that time.- To be sure it was in evidence, that all the houses had been completed for more than six months, except one, and it is probable that the jury would have so found, but that is no reason for the court’s taking that question from their consideration. The prayer should have been so framed as to have presented both alternatives to the finding of the jury. Charleston Ins. Co. vs. Corner, 2 Gill, 410.

As the judgment must be affirmed for these reasons, it is not necessary to express any opinion upon the other propositions discussed by counsel.

Judgment affirmed.