Opinion
No. 38607
Decided December 23, 1964.
Mechanics' liens — Affidavit of materialman — Naming joint owners — Effect of naming only one — Section 1311.06, Revised Code — Naming other materialmen not required, when — Section 1311.04, Revised Code.
1. Under the provisions of Section 1311.06, Revised Code, and related sections, it is not incumbent on a materialman in his affidavit for a mechanic's lien to name both joint owners of the real property affected by such affidavit, but the naming therein of only one of the owners subjects solely the interest in the property of that owner to the operation of the lien.
2. Under the provisions of Section 1311.04, Revised Code, a materialman in filing his affidavit for a mechanic's lien is not required in such affidavit to name another materialman who supplied materials which were installed on such property, where the latter had no information as to where his materials were to be placed, had no knowledge of or relationship to the property owners, and who contracted solely with the first materialman and looked only to him for payment.
CERTIFIED by the Court of Appeals for Franklin County.
The present action originated in the Court of Common Pleas of Franklin County when The Capital City Lumber Company, an Ohio corporation, filed its petition to foreclose its mechanic's lien for materials furnished in the construction of a residence on real estate in the city of Upper Arlington, Ohio, owned as tenants in common by Vincent J. Ellerbrock and Geraldine B. Ellerbrock, husband and wife. They will hereinafter be referred to as appellants.
Wilson Floor Company, Inc., appellee herein and hereinafter so called, a subcontractor and lien claimant, was made a defendant in the action, and it filed its answer and cross-petition, claiming a mechanic's lien on appellants' property for work and labor furnished thereon. An answer was filed by appellants to such cross-petition, which denies generally the allegations thereof and specifically denies that appellee had a valid enforceable lien on their property.
The entire controversy before the Court of Appeals and now before this court on its merits involves a dispute between appellee and the appellants, none of the other lien claimants being involved.
Upon a hearing of the case in the Court of Common Pleas, that court held that appellee's affidavit for a mechanic's lien filed under Section 1311.06, Revised Code, was fatally defective in that only one of the owners of the property affected was named therein and notified, viz., Vincent J. Ellerbrock. In reaching such determination, the case of Martin Co. v. Frautschi, 69 Ohio App. 283, 43 N.E.2d 514, was relied on. However, the court held further that appellee's affidavit for a lien was not invalid under Section 1311.04, Revised Code, by failing to name therein the Leonard L. Smith Marble Tile Slate Company, which furnished and sold marble sills to appellee and which sills were placed by appellee in appellants' residence.
The Court of Appeals reversed the judgment of the trial court as to the necessity for naming both appellants in the affidavit for a mechanic's lien and affirmed the judgment of the lower court in its holding that the inclusion of the Leonard L. Smith Marble Tile Slate Company as a materialman in appellee's affidavit was not required.
It was found by the judges of the Court of Appeals that the judgment rendered therein is in conflict with the judgment rendered in the case of Martin Co. v. Frautschi, supra ( 69 Ohio App. 283, 43 N.E.2d 514), and the case was certified to this court for review and decision.
Messrs. Lucas, Prendergast, Albright Warren, Mr. Robert E. Albright and Mr. Victor A. Ketcham, for appellants.
Messrs. Robins, Metcalf Preston, Mr. Gene W. Thompson and Mr. Richard B. Metcalf, for appellee.
There are two matters for determination by this court:
1. Was it necessary for appellee under Section 1311.06, Revised Code, to name both the appellants, tenants in common of the real property involved, in its affidavit for a mechanic's lien to have an effective lien as to the interest in the property of the one named?
2. Was it necessary under Section 1311.04, Revised Code, for appellee, in its affidavit, to include the Leonard L. Smith Marble Tile Slate Company as a materialman?
Section 1311.01, Revised Code, found in the chapter on liens, contains definitions and provides in part:
"As used in Sections 1311.01 to 1311.24, inclusive, of the Revised Code:
"(A) `Owner,' `part owner,' or `lessee' includes all the interests either legal or equitable, which such person may have in the real estate upon which the improvements contemplated under such sections are made * * *."
Section 1311.06, Revised Code, as pertinent to the instant case, recites:
"Every * * * subcontractor * * * shall make and file for record * * * an affidavit showing the amount due over and above all legal setoffs, a description of the property to be charged with the lien, the name and address of the person to or for whom such machinery, material, or fuel was furnished and labor performed, the name of the owner, part owner, or lessee, if known, and the name and address of the lien claimant."
In Demann's Ohio Mechanic's Lien Law (2 Ed.), 158, Section 7.6, the author states:
"It is well settled that only the interest of those who contract for the improvement can be subjected to a lien, and while a tenant in common relationship should not be construed to give rise to an implied agency permitting a co-tenant to bind the interest of his co-tenant without his consent, it would seem, in view of the language of General Code Section 8310 [now Section 1311.02, Revised Code], `By virtue of a contract, express or implied, with the owner, part owner or lessee, of any interest in real estate * * * shall have a lien * * * upon the interest, leasehold or otherwise,' that lack of consent of a co-tenant or failure on the part of the lien claimant to properly perfect his lien against the interest of a co-tenant who also contracted for the improvement, should not affect the validity of the lien against the interest of the other as to which the lien has been properly perfected."
Such quoted statement corresponds with our interpretation of the Ohio Mechanic's Lien Law and is in accordance with the holdings in other jurisdictions. See Dunlap v. Teagle, 101 Fla. 721, 135 So. 132; Norris v. Nitsch, 183 Kan. 86, 325 P.2d 326; McClintic-Marshall Co. v. Ford Motor Co., 254 Mich. 305, 236 N.W. 792, 72 A.L.R., 807; 36 American Jurisprudence, 68, Section 84; 57 Corpus Juris Secundum, 744, Mechanics' Liens, Section 191.
Therefore, the Court of Appeals correctly held that appellee had perfected a valid lien as to the interest in the real property owned by appellant Vincent J. Ellerbrock, and the appellee concedes that its lien covers only his interest.
As to the necessity for the inclusion in appellee's affidavit of the materialman, the Leonard L. Smith Marble Tile Slate Company, although such materialman cut and shaped marble sills at the direction of appellee to fit appellants' residence, it had no knowledge of the location or identity of the structure where the sills were to be placed, had no knowledge of appellants, contracted solely with appellee and looked exclusively to appellee for payment. In these circumstances, such materialman does not meet the description of a materialman under Section 1311.04, Revised Code, whom appellee should have included as such in its affidavit. In short, a materialman who furnishes materials to another materialman without knowledge of the specific use to be made of them and who looks entirely to the latter for compensation need not be included as a materialman in the affidavit for a mechanic's lien. Choteau v. Thompson, 2 Ohio St. 114; and Demann's Ohio Mechanic's Lien Law (2 Ed.), 51 et seq., Section 3.5.
We find no error in the judgment of the Court of Appeals herein, and it is, accordingly, affirmed.
Judgment affirmed.
TAFT, C.J., MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.