Shoop v. Powles , 13 Md. 304 ( 1859 )

Bartol., J.,

delivered the opinion of this court,

The question presented by this appeal is, whether, by the lien laws for Washington county, a person furnishing materials to a contractor, for a building, is required, in order to secure his lien thereon, to give notice of his claim to the owner of the building before payment by the latter tó the contractor. This question depends upon the construction of the acts of 1842, ch. 183, and 1846, ch. 290. By these acts every building erected in Washington county is made subject to a lien foy materials furnished for its construction; and the proviso to the 1st section of the act of 1842 having been repealed by the 1st .section of the act of 184=6, the lien may be enforced, whether the materials be furnished to a contractor or to the owner, in this case it is conceded, that all the requirements of the acts have been complied with, except the preliminary notice to Winters, the own.er, by the appellants, of their intention to .claim a lien. Such a notice, it is contended by the appellee, js made necessary by the 4th section of the act of 1846. We are of opinion that this section cannot properly receive* such a construction; adopting the language used by the appellants in ¡their brief, we think the only purpose and effect of that section is “to enable the owner of a building, in any case in which he may have the notice, to retain from the claim of the .contractor the amount due the material-man, and in case liens be laid, both by the contractor and the material-man, upon the building, for their respective claims, to deduct from that of the former what may be due to the latter.” But neither that section, nor any other proyision of the acts, requires, in terms, or by fair legal construction, that such notice should be given as essential to the validity of the lien of a material-man upon the building.

The hardship and loss, which it is contended such a construction of the law inflicts upon the owner, may be obviated, as it might have been avoided by the appellee in this case, by so framing his contract as to allow him to retain in his bands, during the period limited by the act for filing liens, a sufficient amount to meet all possible liens thereon; or by requiring indemnity against such claims before paying the money on his contract. What was said on this part of the case by the appellee’s counsel, in the argument, might more properly be addressed to the Legislature. In such a case as this, it would be well, we think, for the law to require some notice to the owner; such has been the usual course of legislation in Maryland, as well as in other States where lien laws have been passed. By the act of 1838, ch. 205, and its supplements, regulating mechanics’ liens in the city of Baltimore, previous notice to the owner is, in express terms, required, in order to ?nake the lien operative in a case like this. But in the acts of 1842 and 1846, no such provision is to be found. The decision of this court in Thomas vs. Barber, 10 Md. Rep., 380, so much relied on by the appellee, was made with reference to the provisions of the act of 1838 and its supplements, and has no application to this case. We dissent from the ruling of the circuit court upon the demurrer and reverse the judgment.

(Decided April 28th, 1859.)

In deciding this case, we have not failed to notice the provisions of the act of 1866, ch. 112, secs. 36, 37, regulating the form of demurrers. Here (he demurrer is in the old form; it does not “particularly express the causes of the same,” nor contain any “specific statement of some point of law, showing in what respect the pleading is insufficient in substance,” as required by the act. But no objection was made by the defendant, in the court below, to the form of the demurrer; the record shows that it was overruled, not because of any want of compliance, in form, with the act of 1866, but because the circuit court held the plea to be sufficient. Moreover, the defendant joined issue upon the demurrer, and we consider that he has thereby waived any objection which might have been made thereto, under the 36th and 37th sections of the act of 1866.

Judgment reversed and procedendo ordered.