H. N. Francis & Co. v. Hotel Rueger, Inc.
H. N. Francis & Co. v. Hotel Rueger, Inc.
Opinion of the Court
delivered the opinion of the court.
On July 2, 1912, William Rueger, the then owner of certain real estate located at the southeast corner of Ninth and Bank streets, in the city of Richmond, entered into a written agreement with F. T. Nesbit & Co., Inc., builders, for-the construction on the above-mentioned site of a hotel: building, to be known as “Hotel Rueger.” On August 26, 1912, the “Hotel Rueger” was incorporated under the name of “Hotel Rueger, Inc.,” and took over the real estate and the building contract. The building was completed about March 14, 1914.
A large number of sub-contracts were let by F. T. Nes-bit & Co., Inc., for parts of the work; and when the building was approaching completion it became financially embarrassed and subsequently went into bankruptcy.
On February 2, 1915, the cause was referred to a commissioner (to whom the other two causes, as above mentioned, had already been referred), and the three causes were directed to be thereafter heard together. Among other inquiries, the commissioner was directed to report an account of all liens against the property.
The commissioner, on February 15, 1916, returned his report showing that there remained in the hands of the owner due to F. T. Nesbit & Co., Inc., and subject to the valid liens of the sub-contractors, the sum of $4,359.79; and disallowing upon technical grounds the claims of liens of H. N. Francis & Co., Inc., Pittsburg Plate Glass Company, and Standard Engineering Company. With respect to the Warren-Ehret Company’s claim, the commissioner reported that it was barred by the statute of limitations.
We think, too, that the case of Taylor v. Netherwood, 91
2. That where the account contains such statement, and the fact that the work or materials were contracted for as an entirety is established by the evidence, a general statement of the fact and the sum charged therefor under the contract will suffice.
What has been said of H. N. Francis & Co.’s account applies with more force to the claims asserted by the Pittsburg Plate Glass Company and the Standard Engineering Company, whose accounts afford illustrations of, perhaps, a stricter compliance with the statute (invoking where needed the aid of ample admissible extrinsic evidence) than the first-mentioned account. Let it be observed of all these accounts that no question is raised as to their bona fides. They were disallowed upon technical grounds, based largely, we conceive, upon a too literal adherence to some of the language used in the opinion in Taylor v. Netherwood. The court there was dealing with the facts of the particular case, and held the account sufficient; but it neither decided, nor intended to decide, that the sufficiency of all other accounts was to be measured by the account filed in that case.
The reporter will set out all three of these accounts in reporting the case, and it would serve no good purpose and uselessly add to the length of the opinion, to notice in detail the various items of the last-mentioned claims. Both should have been allowed.
1. That there is no personal liability upon the Hotel Rue-ger, Inc., for any of the liens set out in this record. When notified of the H. N. Francis & Co. claim of lien, it set apart a fund sufficient to discharge it; which fund was after-wards paid into court, and is now the subject of controversy.
2. That the commissioner was in error in rejecting the liens of H. N. Francis & Co., the Standard Engineering Company and the Pittsburg Plate Glass Company on the ground of deficiency of statement.
Section 2481 of the Code provides that no suit shall be brought or petition filed to enforce a mechanic’s lien after six months from the time when the whole amount covered by the lien has become payable. By contract the whole amount sought to be covered by the Warren-Ehret lien became payable November 15, 1913, and the six-months’ limitation expired May 15, 1914. The suit by Hotel Rueger to which this claimant was a party was not brought until June 4, 1914, too late to stop the running of the statute of limitations as to that lien. Warren-Ehret Company was not a party to either of the other two suits, and the account of liens ordered in each was not made until after the lien was barred.
4. That the Engleby & Bro. Co.’s claim, to the extent to. which it was allowed, is sufficiently definite within the meaning of the statute.
Affirmed in part; reversed in part.
Reference
- Full Case Name
- H. N. Francis & Co., Inc. v. Hotel Rueger, Inc. Pittsburg Plate Glass Co. v. Hotel Rueger, Inc. Standard Engineering Co. v. Hotel Rueger, Inc. and Warren-Ehret Co. v. Hotel Rueger, Inc.
- Cited By
- 21 cases
- Status
- Published
- Syllabus
- 1. Mechanics’ Liens — Construction of Statutes. — Although there' is a diversity of opinion as to whether mechanic’s lien statutes-should receive a strict or liberal construction, the correct rule-of construction as to the Virginia statute is that there must be a substantial compliance with the requirement of that portion-of the statute which relates to the creation of the lien; but that the provisions with respect to its enforcement should be liberally construed: Thus, section 2478 of the Code of 1904 provides : “No inaccuracy in the account filed, or in the description of the property to be covered by the lien, shall invalidate the-lien, if the property can be reasonably identified by the description given and the account conform substantially to the requirements of the two preceding sections, and is not willfully false.”' But to obtain the benefit of this section the provisions of sections 2476 and 2477, Code of 1904, must be substantially complied with. 2. Mechanics’ Liens- — Statement of Account — Particularity Required. — There is a distinction in regard to the particularity-required in specifying the amount and character of the work done or materials furnished, and the prices charged therefor-where the claim for a mechanic’s lien rests upon open account and where the work done or materials furnished were contracted for as an entirety. More particularity of statement is-required in the former than in the latter instance. 3. Mechanics’ Liens — Statement in Account — Express Contract.— A statement in an account upon which a claim for a mechanic’s-lien is based that certain work was done, or materials furnished, under agreement, or contract, for a specific sum, is equivalent to saying that it was under an “express contract,” or-“was contracted for as an entirety.” And where the account: contains such statement, and the iact that the work or materials were contracted for as an entirety is established by the evidence, a general statement of the fact and the sum charged therefor under the contract will suffice. 4. MECHANICS’ Liens — Sufficiency of Statement of Account. — The first item in the account of a claimant of a mechanic’s lien was by contract, $10,000. While this item standing alone might be insufficient to entitle the claimant to relief under the mechanic’s lien statute, it did not stand alone, and whether it should stand or fall depended upon its sufficiency aided by the evidence adduced in support of it. The account on its face bore the evidence of the character of work in which the claimant was engaged and the materials it was furnishing; and the principle is elementary that the entire paper must be looked to and read together in giving it effect. The evidence aliunde showed that the contract referred to was a standard contract covering several pages of closely printed matter, and. abundantly establishes everything with respect to the item that reasonably could be required. The entire account was in substantial conformity to the statute, and should have been upheld. 5. Mechanics’ Liens — Deposit by Owner in Court — Personal Liability of Owner. — Where the owner of a building, upon notice of the claim of a mechanic’s lien by a sub-contractor, set apart a fund sufficient to discharge it, which fund was afterwards-paid into court, there is no personal liability upon the owner. 6. Mechanics’ Liens — Statute of Limitations. — Where a sub-contractor’s lien was barred by section 2481, Code of 1904, his claim could not be allowed in a suit brought by the owner of the building to determine the validity of certain claims for a mechanic’s lien, to which suit he was a party, he not having been a party to earlier suits brought to establish mechanic’s-liens, and the account of liens ordered in these suits not having been made until after his lien was barred. 7. Mechanics’ Liens — Money Paid into Court — Bights of Sub-Contractor. — The owner of a building had paid into court a balance in his hands due to the general contractor, and prayed that the court would determine the validity of the respective claims of lien of various sub-contractors. Held: That the liens allowed must share ratably in the fund on deposit to the order of the court, after first deducting therefrom the cost of litigation with respect to the allowed claims..