Slike strani
PDF
ePub

be specially against the leasehold interest; it is error to name the owners of the fee. And it can only be filed against the specific improvement.2

15. Lien Under Verbal Contract.-When an account is filed under the statute to secure a mechanics' lien under a verbal contract, if it states that the work was done at the request and with the approval of the party to be charged, it is a sufficient compliance with the statute.3

16. Joint Lien.-A joint lien may be filed against several adjoining buildings owned by the same person, which may be enforced in a single proceeding. But a joint lien cannot be filed against adjoining houses owned by different persons.5 Where materials are furnished indiscriminately for several houses under an entire contract, the material-man may file separate claims, and apportion the amount on each house. A joint and apportioned claim should be filed where materials for several adjoining buildings are furnished under one joint contract.7

17. Extra Work.—Items for extra work may be included if the contract stipulated for extra work.8 Where the later items of a mechanics' account for which he claims a lien are for other work, as, for instance, where the building is completed and afterwards some further thing to be done is determined on, the furnishing of

1. Carey v. Winstersteen, 60 Pa. St. 395; St. Clair Coal Co. v. Martz, 75 Pa. St. 384; Esterly's Appeal, 54 Pa. St. 192.

2. St. Clair Coal Co. v. Martz, 75
Pa. St. 384; Esterly's Appeal, 54 Pa.
St. 192.
And see Mapes v. Garfield,

21 Pitts. L. J. 132.
3. Pool v. Wedemeyer & Schulte, 56
Tex. 287.

4. Moran v. Chase, 52 N. Y. 346. See James v. Hamilton, 42 Ill. 308; McGrew v. McCarty, 78 Ind. 496; Stewart 7. M'Quaide, 48 Pa. St. 195; Wilson v. Forder, 30 Pa. St. 129; Peck v. Standart, 1 Ill. App. 228; Dewing v. Wilbraham, etc. Soc., 13 Gray (Mass.) 414; Moore v. Forest Mansion Hotel Co., 3 W. N. C. (Pa.) 289; McKelleget v. Eckhard, 4 Mo. App. 589; Pennock v. Hoover, 5 Rawle (Pa.) 291; Donaho v. Scott, 12 Pa. St. 45.

A joint lien may be filed for materials furnished for the erection of a new building and the repair of an old one. Authorities cited in Griel's Appeal (Pa.), 9 Atl. Rep. 861.

A joint claim cannot be filed against two or more separate blocks of buildings, situate on different streets. Chambers v. Yarnell, 15 Pa. St. 265. Campbell . Furness, 1 Phila. (Pa.) 372.

A joint lien against three distinct

blocks of buildings, separated by streets, is void upon its face. Goepp v. Gartiser, 35 Pa. St. 130; s. c., 3 Phila. (Pa.) 335.

5. Gorgas v. Douglas, 6 S. & R. (Pa.) 512; Kerbaugh v. Henderson, 3 Phila. (Pa.) 17.

6. Millett v. Allen, 3 W. N. C. (Pa.) 374; Rush v. Bank, 2 W. N. C. (Pa.) 263.

7. Liebelt v. King, 21 Pitts. L. J. (Pa.) 144. See Armbrust v. Galloway, 2 W. N. C. (Pa.) 585.

Where a claim is filed against several buildings, within the same curtilage, intended to be occupied together, an apportionment is unnecessary. Lauman's Appeal, 8 Pa. St. 473.

8. Pullis v. Hoffman, 28 Mo. App. 666; Rush v. Able, 90 Pa. St. 153; Mulrey v. Barrow, 11 Allen (Mass.) 152.

Extra work and materials done and furnished by a contractor, during the performance of his agreement, may be included in and constitute a part of his claim, if the claim be filed in compliance with the terms of the statute. Though outside the contract they are so closely connected with it that they have always been included, in filing the claim, with those done and furnished under the contract. Rush v. Able, 90 Pa. St. 153.

such items cannot extend the time for filing the account so as to preserve the lien.1

18. Verification of Claim.-The statutes in some States require the claim to be verified.2 The verification of the demand contemplated by statute providing a lien in favor of mechanics, etc., is the oath or affirmation of the claimant, or of some other person having knowledge of the facts, taken before an officer of this

1. Frankoviz v. Smith, 34 Minn. 403. Where work done under a contract is substantially finished and accepted more than six months before filling a mechanics' lien, if extra work is thereafter done under an agreement with the owner that it should be done as a substitute for work which was to be done under the original contract, and no additional compensation was to be allowed therefor, the time of the lien will be extended. McKelvey v. Jarvis, 87 Pa. St.

414.

2. Meriman v. Bartlett, 34 Minn. 524; Klogh v. Main, 50 N. Y. Super. Ct. 183; Grey v. Vorhis, 15 N. Y. Supreme Ct. 612; Meyer v. Berlandi, 39 Abb. L. J. 9; Gibbs v. Peck, 77 Pa. St. 86; Snyder v. Crothers, 31 Leg. Int. 404. Compare Pope v. Graham, 44 Tex. 196.

One who seeks to enforce a mechanics' lien for material furnished is required by statute to file an affidavit of the amount due within thirty days after furnishing the material, and also proof of service of notice of the lien. If he does not, it is provided that the lien shall cease as to all persons except the owner of the premises. It is further provided that the lien shall not continue more than sixty days after the filing of the affidavit of amount due, unless proceedings to enforce the lien have been begun. Held; that if no affidavit is filed at all, the lien will be lost after ninety days have passed since the material was supplied. Comstock v. McEvoy, 52 Mich. 324.

Defective Affidavit-An affidavit is fatally defective in failing to state defendants ownership at the time the materials were furnished, or the contract for furnishing them was made. An averment that the building is upon a lot owned by defendant is not sufficient. Morrison v. Philippi, 35 Minn. 192; Rugg v. Hoover, 28 Minn. 404.

In Hays v. Mercier, 22 Neb. 656, it was held that an affidavit may be sufficient to support the proceeding, even though it lacks a formal and technical averment as to the ownership of the

land, while the petitition requires this, it is not indispensable in the affidavit.

The signature of a claimant under the mechanics' lien law of Missouri, appended to his statement, and the certifi cate of the clerk of the court, that he made oath to the accompanying affidavit, is a substantial compliance with the statute, although the claimant fail to sign the affidavit. And if objection is offered to the reading of the lien in evidence at the trial on account of the absence of such signature, the clerk should be allowed to amend his jurat in this respect. Laswell v. Presbyterian Church, 46 Mo. 279.

Where, after a subcontractor furnished material, and before the filing of the claim for a lien, the owner of the premises conveys them, the fact that the affidavit by the subcontractor for a lien, states that the contractor, to whom the material was furnished, was the agent of the grantee instead of the grantor, will not invalidate the lien. Lax v. Peterson (Minn.), 44 N. W. Rep. 3.

Oath Administered by Magistrate.—It is no objection to the validity of a certificate of account, offered in evidence at the trial of a petition to enforce a mechanics' lien, that the oath to the certificate was administered by a magistrate who was at the time the attorney of the petitioner. McDonald v. Willis, 143 Mass. 452.

County Recorders.-A mechanics' lien claim may be verified before county recorders. Arrington v. Wutenburg, 12 Nev. 99.

Sufficiency of Verification.-Verification stating that claim "is true" is sufficient without adding words "of his own knowledge." Arata v. Tellurium Gold & Silver Min. Co., 65 Cal. 340.

A verification that the statements therein contained were true to the best of the affiants information and belief is insufficient. Childs v. Bostwick, 65 How. (N. Y.) Pr. 146.

A statement designated the claimant as the "Chicago Lumber Company,"

State authorized by law to take and certify oaths. Where the statute prescribes no form of verification, if the claim is signed by the party and verified by his oath, this is sufficient.2

An affidavit to foreclose a laborer's lien must show affirmatively that the contract of labor has been completed.3

19. Alteration of Recorded Claim.—The record of a mechanics' claim cannot be amended by an alteration in the description of the premises, as to affect a bona fide purchaser, without notice.4 XVIII. COMPLAINT AND PETITION.-Proceedings to enforce a mechanics' lien are commenced by making out a complaint or petition with a summons to the owner or other party named therein to appear and defend.5

1. Requisites Generally.-The complaint should contain some description of the property to be charged, and it must clearly

and the verification was signed "Jos. M. Eck, Manager, claimant," and the bill of items which formed a part of the statement, made by claimant, designated Eck as manager. Held, that the signing and verification of the statement was not so defective as to defeat the lien. Chicago Lumber Co. v. Osborn, 40 Kan. 168.

1. Chandler v. Hanna, 73 Ala. 390. 2. Kezartee v. Marks, 15 Oreg. 529. See Floyd v. Chess-Carley Co., 76 Ga. 752.

An affidavit to a mechanics' lien statement of a firm, which is signed by the firm name and is sworn to by a certain person who states that he is a member of the firm, is sufficient. Sharon Town Co. v. Morris, 39 Kan. 377.

3. McDonald v. Night, 63 Ga. 161. 4. Armstrong v. Hallowell, 35 Pa. St. 455.

The lien claim filed under the mechanics' lien law cannot be amended by adding another claimant. Vreeland v. Boyle, 37 N. J. L. 346.

5. Spafford v. Huse, 9 Allen (Mass.) 575. See Rice & Floyd v. Simpson, 30 Kan. 28.

In California, suit is not commenced until the issuing of the summons. Green v. Jackson Water Co., 10 Cal. 375

Under the act of 1861, suit is properly brought on a mechanics' lien, when the petition is filed and notice is issued by the clerk of the court, and no complaint and suminons are necessary. Van Winkle v. Stow, 23 Cal. 457.

In Georgia, the mere filing of a declaration in office, unless followed by proper service upon the defendant, is not the commencement of suit. Cherry

v. North and South R. Co., 65 Ga. 633; s. c., 11 Am. & Eng. R. Cas. 636.

In Illinois, the filing of the petition is the institution of the suit. Bennett v. Wilmington Star Mining Co., 119 Ill. 9.

In Massachusetts, the service of a writ is not the commencement of a suit, but the suit is commenced when the writ is made except in cases in which it is otherwise provided by statute. Spafford v. Huse, 9 Allen (Mass.) 575, 576; Worthen v. Cleaveland, 129 Mass. 570, 572.

In New Jersey, the summons must be served in order that judgment may be rendered. Mutual Ben. Life Ins. Co. v. Rowand, 26 N. J. Eq. 389.

In New York, the service of the notice is the beginning of a suit, which may proceed though the owner does not appear. Brown v. Wood, 2 Hilton (N. Y.) 579.

In South Carolina, when a petition to enforce a mechanics' lien is filed, the action is commenced; and if filed within the time limited, the proceedings cannot be dismissed upon the ground that it was not commenced in time, even though the summons only was served. Oliver v. Fowler, 22 S. Car. 534.

6. Shaw v. Allen, 24 Wis. 563: Duffy v. McManus, 3 E. D. Smith (N. Y.) 657; s. c., 4 Abb. (N Y.) Pr. 432. See Tredinnick v. Red Cloud etc. Min. Co., 72 Cal. 78; Dickson v. Corbett, 11 Nev. 277; Munger v. Green, 20 Ind. 38; Holland v. McCarty, 24 Mo. App. 82; Peck v. Bridwell, 10 Mo. App. 524; Shaw v. Barnes, 5 Pa. St. 18; Quackenbush v. Carson, 21 Ill. 99; Bristow v. Evans, 124 Mass. 548, 552; Morrison v. Henderson (Pa.), 46 Phila. Leg. Int. 327.

pray a lien upon the premises. It should contain, where the materials furnished or labor performed are, on account of the owner, an allegation that such person has an interest in the property to be charged,2 that he directed the improvements to be made, and that the value of the premises was increased.3 It should state, independently of the petition, all the facts necessary to show a cause of action, even though the petition is annexed, and is declared to be "made part and parcel" of such complaint.a And it should also aver facts showing the statutory right on the

If there is a want of common certainty in a description of a lot of land by the number thereof in a petition for a mechanics' lien, it is incumbent upon the defendant to show wherein the defect or uncertainty consists. O'Halloran v. Sullivan, 1 Iowa (Greene) 75.

A statement that the building was situated on block 109, in the town of C, was held insufficient. McCarty v. Van Etten, 4 Minn. 461.

1. McCarty v. Van Etten, 4 Minn. 461.

2. Shaw v. Allen, 24 Wis. 563; Porter v. Tooke, 35 Mo. 107; Wilcox v. Keith, 3 Oreg. 372; Hawley v. Henderson, 34 Miss. 261.

In order to enforce a mechanics' lien, under the provision of the statute specially applicable to St. Louis county, the petition must show that the contract was made with someone having an estate or interest in the land, and also who was the owner of the land on which the building was erected. Porter v. Tooke, 35 Mo. 107.

If another person than the owner be joined as a defendant, the complaint must show what interest he has in the premises. Jenks v. Brown, 66 N. Y. 629.

3. Ross. v. Simon, 8 N. Y. Supp. 2. 4. Shaw v. Allen, 24 Wis. 563; Heltzell v. Langford, 33 Mo. 396; Mason v. Heyward, 5 Minn. 74; Loomis v. Fry, 91 Pa. St. 396; Fay v. Adams, S Mo. App. 566; Dearie v. Martin, 78 Pa. St. 55; Loyd v. Hibbs, 81 Pa. St. 306; Wilson v. Schuck, 5 Ill. App. 572; Kinney v. Sherman, 28 Ill. 520.

A complaint to enforce a materialman's lien must allege the performance of all the acts necessary under the statute to secure the lien. Chaffin v. McFadden, 41 Ark. 42.

In an action, under the statute for securing liens upon property for work or materials furnished, each count must aver not only that a sum of money is due, but that the debt was created by

the performance of labor upon, or for materials furnished to the building, also, that the claim was filed within the time limited by statute, and it should also contain a description of the building, and of the premises on which it stands, and without these requisites in each count a general judgment, and assessment of damages and costs upon the declaration for want of a plea, is bad. Dewey v. Fifield, 2 Wis. 73.

In a petition for a lien, under the act of March 3rd, 1855, the quantity of the land, and whether within the limits of any city, town or village plat should be stated. McCarty v. Van Etten, 4 Minn. 461.

A complaint to enforce a mechanics' lien alleged that the defendant's husband and wife, were indebted to the plaintiff for work and materials furnished, as shown by a bill of particulars, in erecting a house on real estate belonging to the wife. Held, that the averments of the complaint were not sufficient to charge the wife, but that all the particulars necessary to show the liability of the wife should have been expressly averred. Black v. Rogers, 36 Ind. 420.

Where a subsequent purchaser at a sheriffs' sale is made a party defendant to answer to his interests, the complaint need not show a cause of action against him, as it is his duty, if he would protect his title, to set up affirmatively; nor can he demur to the complaint on the ground that it stated no cause of action against the alleged owner of the real estate. Woolen v. Wishmier, 70 Ind. 109.

Real Estate of Married Woman.-In a complaint to enforce a mechanics' lien against the real estate of a married woman for improvements by the repair of old, or the construction of new, buildings thereon, it is not necessary to allege therein, that such improvements are necessary and proper for the full and complete enjoyment thereof.

Vail

part of the claimant to create a lien.1 A party seeking to enforce a lien under the statute relating to mechanics' liens must, by his pleading, bring himself strictly within its terms, and show his right to the lien as against those made defendants.2 The petition should aver that the time for delivery, performance and payment are within the several periods named by the statute, and these averments must be proved, so that the court may know that the conditions required by the statute have been complied with.3 A demand of payment of the exact sum due, and refusal to pay, must also be averred. The complaint should show that its object is to enforce the lien.5 The petition need not be sworn to, and may be signed in the name of the petitioner by his attorney.6 So in an action by a subcontractor against the owner of real estate on which a contractor has erected a building for the owner to recover for materials furnished by the subcontractor to the contractor for such building, the complaint need not set out a copy of the notice by the subcontractor to the owner, as such notice is not the foundation of the action."

It is not necessary that a petition to enforce a mechanics' lien. should pray for an execution against the property on which the lien had attached. If the account filed with the pleadings and the one filed with the claim for a lien correspond, it sufficiently appears that the suit is for the purpose of enforcing the lien.S

v. Meyer, 71 Ind. 160, overruling Lindley v. Cross, 31 Ind. 106.

1. Conkright v. Thompson, 1 E. D. Smith (N. Y.) 661; Foster v. Poillon, 2 E. D. Smith (N. Y.) 556; Fay v. Adams, 8 Mo. App. 566; Duffy v. McMaines, 3 E. D. Smith (N. Y.) 657; s. c., 4 Abb. Pr. (N. Y.) 432.

The complaint must show the statutory proceedings to create a lien, as well as the performance of the labor, or the furnishing of the materials. Foster v. Poillon, 2 E. D. Smith (N. Y.) 556; s. c., 1 Abb. Pr. (N. Y.) 321.

V.

2. Crowl v. Nagle, 86 Ill. 437; Dean Wheeler, 2 Wis. 224; Phillips v. Stone, 25 Ill. 77; Montag v. Lynn, 25 Ill. 169; Scott v. Keeling, 25 Ill. 358; Ely v. Wren, 90 Pa. St. 148; Gould v. Garrison, 48 III. 258.

Where a complaint to foreclose mechanics' lien failed to show that they were filed within six months before the commencement of the action; held, that the omission was one which should be taken advantage of by demurrer, and that after issue joined and decision rendered on the merits, the pleading would be upheld by every legal intendment. Skyrme v. Occidental Mill & Mining Co., 8 Nev. 219.

3. Cook v. Vreeland, 21 Ill. 431; Epley v. Scherer, Colo. 536; Stein v. Schultz, 23 Ill. 646.

A petition, filed under the Mississippi act of 1840, to enforce a mechanics' lien, alleged that the claim was one entitled to the privileges conferred by the act, and, on the plea of non-assumpsit, there was a verdict in general terms, "we of the jury find for the plaintiff." Held, that it must be presumed that the allegations of the petition were established by proof. Richardson v. Warwick, 8 Miss. 131.

4. Sheely v. Funderbunk, 47 Ga. 287; Brantley v. Raybon, 61 Ga. 211; Walls v. Rutherford, 60 Ga. 439; Anderson v. Beard, 54 Ga. 137, 138; Gilbert v. Marshall, 56 Ga. 148.

5. Foster v. Poillon, 1 Abb. Pr. (N. Y.) 321.

6. Brown v. La Crosse City Gas Light etc. Co., 16 Wis. 555.

Sufficient Signing.-A petition for a mechanics' lien in favor of two partners, if signed by one of the partners, is sufficiently signed. White v. Dumpke, 45 Wis. 454.

7. Irwin v. Crawfordsville, 58 Ind. 8. Johnson v. McHenry, 27 Mo. 264.

492.

« PrejšnjaNaprej »