Curtis-Dayton Co. v. Timken Rol. Bearing Co. , 2 Ohio Law. Abs. 169 ( 1923 )

PATTERSON, J.

Epitomized Opinion

First Publication of this Opinion

This was an action for material furnished the Timken Roller Bearing Company, consisting of lumber, sashes, door frames, etc. The plaintiff alleged that the assignor, the Crystal . Park Lumber & Coal Company, had performed all of the conditions of the contract existing between it and the defendant in furnishing said material and that a lien was duly filed on said property within the statutory period, and that a copy of the affidavit was filed on defendant within 30 days after the filing of the lien. A demurrer was sustained to the petition. Error was prosecuted to the Court of Appeals and two questions presented to that court, to-wit: Whether or not the plaintiff was a material man as defined in 8323-0 GC. and secondly whether under 8312 GC. it was a condition precedent to the securing of a lien that the material men shall serve notice upon the owner such as is required by the original contractor or by a sub-contractor. The Court of Appeals held:

1. The petition showed that the plaintiff was a material man; under 8312 GC. it was not required as a condition precedent to a lien to serve a notice upon the owner.

2. Under 8312 GC. a contractor or a subcontractor is required as a condition precedent to a lien to serve a notice upon the owner, but neither a material man nor a laborer is required to serve such notice upon the owner.