Mikochinski v. Akron Tile Co. , 2 Ohio Law. Abs. 188 ( 1923 )

FUNK, P. J.

Epitomized Opinion

First Publication of this Opinion

This was an action to foreclose a mechanics lien brought by the Akron Tile & Fireplace Co. in which a personal judgment was asked against the defendants for the amount due upon the account for which the lien was taken. The plaintiff furnished and installed certain bathroom and other fixtures in an apartment house erected by one of the defendants, Deutchman. The work was com¡menced on March 19, 1920. The work was substantially done on May 10, 1920, except places left open where bathroom and, other fixtures were to be installed. After the fixtures were installed the tile work was completed somle time in September, 1920. Plaintiff claimed that the last work was done on Sept. 22 and 23, 1920.-Defendant claimed that the last work was done prior to Sept. 15, 1920. The affidavit for a mechanics lien on this work was filed Nov. 16, 1920. Defendants also claimed that the tile work constituted a separate contract and plaintiff claimed that the contract was an entire contract for the whole Work, including the tile and the fixtures. Some time during the progress of the work Deutchman sold the property to the Mikochinskis. As the court held for the plaintiff, defendants prosecuted error. In reversing certain features of the judgment, the Court of Appeals held:

1. Under the circumstances of the case the contract was an entire contract rather than a contract for separate work.

2. By construing 8310 GC. together with 8315 and other sections of the Mechanics Lien law , the word “owner” referred to in Sec. ■8315 is the owner at the time the labor and materials were begun to be furnished by the contractor under the original contract; therefore it was not necessary to serve any notice upon the defendants, Mr. and Mrs. Mikochin-ski, as they were not owners of the property at the time.

3. As the lower court rendered a personal judgment against the Mikochinskis, the court erred in that respect.