Frank J. Hagerty Mantel Co. v. Bolibruch ( 1929 )

Opinion by

Baldrige, J.,

We are in entire accord with the learned trial judge in striking off the mechanic’s hen filed in this case. The claim was based on materials and labor furnished, consisting of tile, bath room accessories, cement, lime, sand, gravel, labor, as set forth in the bill of particulars. The work was done and materials were furnished upon an oral bid to a general contractor for the sum of two hundred forty ($240) dollars, “which was orally accepted by Mm at or about the time said labor and materials were furnished.” Attached to the claim was the following bill of particulars:

“138 sq. ft. 6 in. x 3 in. glazed tile

35 lin. ft. 6 in. x 2 in. glazed cap

24 lin. ft. 6 in. x 2 in. glazed cove

60 sq. ft. 1 in. white hex vitreous tile

Bath Boom Accessories.

(1) one 6 in. x 6 in. CMna soap and grab rail

(1) one 24 in. towel bar

(1) one 6 in. x 6 in. china tumbler holder

(1) one 6 in. x 6 in. china soap holder

(1) one 6 in. x 6 in. china paper holder

(1) tooth brush holder

7 sacks of cement

4 sacks of lime

25 bushel of sand

10 bushel of gravel

4 days labor for tile-setter and helper Contract price for the above........$240”

It will be noted that the claimant did not aver that its bid was accepted prior to, but “at or about the time” of the furnishing of the labor and materials. As the materials were furnished and the work was done over a period of two weeks, to wit, from December 4, 1925, to December 18, 1925, we can not assume that the contract was entered into for a definite sum prior to the furnishing of materials and doing the work. As there was no contract for a lump sum, the claim should have set forth the dates when the materials were furnished and the work done.

This case is controlled by our discussion and conclusion in the opinion filed this day in Johnson Service Company v. Fayette Title and Trust Building, Corporation et al.

The judgment of the lower court is affirmed.