Opinion
No. 4169.
Decided February 3, 1953.
Replacement by the contractor of certain building material, originally furnished by the claimant subcontractor under its completed contract with the former with a charge therefor to the claimant's account, did not operate to extend the time in which to claim a mechanic's lien under R. L., c. 264. Nor does excuse for non-delivery by the claimant operate to extend the period. The statutory period of ninety days (Laws 1949, c. 184, s. 2) within which to claim a mechanic's lien is neither shortened nor extended by insolvency, death or breach of contract. The failure to perfect a mechanic's lien within ninety days after the contract is completed results in its expiration in the absence of a waiver by the owner.
ASSUMPSIT, on a contract to furnish building materials to the defendant Leon Keyser, Inc., general contractor for the construction of a physical education building at Tilton School, in which the materials were used; and to perfect a mechanic's lien thereon. Trial by the Court with a finding that the plaintiff does not have a mechanic's lien on the physical education building and that the plaintiff is a general creditor of Leon Keyser, Inc., with a claim of $2,459.42. The defendant, Leon Keyser, Inc., at the time of the institution of this suit was in receivership. Plaintiff's exceptions to the findings and order were reserved and transferred by Goodnow, C. J. Other facts appear in the opinion.
The Court's findings are as follows: "As to the claim of Tolles-Bickford Lumber Company, Inc., it appears that this claimant furnished materials for the erection of the physical education building by virtue of a contract with Leon Keyser, Inc. This contract consisted of an accepted bid submitted in the first half of 1950 which called for the furnishing of certain materials. The bid price for all materials to be furnished was $4,855.00. Of these materials all had been furnished except material for a ticket or cashier's booth before January 31, 1951. In addition to the contract materials, extra materials had been furnished for framing of the cupola at a cost of $311.22, this also having been furnished prior to January 31, 1951. On April 18, 1951, the claimant received notice by letter that the contractor was short fifty feet of base molding and two or three days later in a telephone conversation with a representative of Leon Keyser, Inc. the claimant gave authorization to Leon Keyser, Inc. to purchase the necessary molding locally and charge it back to the claimant by deduction on its account. The cost of this material was approximately $10.50. As to the material for the ticket or cashier's booth, no specifications were furnished for this material to the claimant and the materials for this booth were never furnished on the job by the claimant. The cost of this material was $50.00 and the booth was later furnished by someone else under contract with the receiver. of the contract price of $4,855.00, the claimant was paid $2,646.30 by the Company before the receivership. In determining the amount due on the claimant's account, deductions must be made for $50.00 for materials for the booth and for $10.50 for the base molding as well as for $2,646.30 for the amount paid on account. There should be added the sum of $311.22 for extra material furnished. This leaves a balance due on the account in the sum of $2,459.42. The last material furnished was prior to January 31, 1951. The authorization given in April, 1951, for the local purchase of the additional base molding did not constitute such a furnishing of material as to set that date as the last date for furnishing material under the statute. On May 12, 1951, the physical education building was specially attached by real estate attachment to secure the plaintiff's lien and on the same date notice of the claim of lien as required by section 16 was given to Tilton School. The last material furnished by the claimant was not furnished within ninety days prior to May 12, 1951. As between Tolles-Bickford Lumber Company, Inc. and the general creditors of Leon Keyser, Inc., it is ordered that Tolles-Bickford Lumber Company, Inc. does not have a lien on the physical education building at Tilton School and is simply a general creditor as to this job with a claim of $2,459.42."
Maurice A. Broderick, James A. Manning and Raymond J. Chabot (Mr. Broderick orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Booth orally), for Leon Keyser, Inc. and Robert P. Booth, Receiver.
Normandin Normandin for Tilton School, filed no brief.
The statute (R. L., c. 264, ss. 19, 20, as amended by Laws 1949, c. 184, s. 2) provides in substance that the subcontractor shall have a mechanic's lien for ninety days after the materials are furnished providing he makes an attachment of specifically described property for that purpose while the lien continues. Compliance with the statutory provisions have been required not only in giving the requisite notice (R. L., c. 264, s. 16; Poirier v. Company, 84 N.H. 461) but in making the attachment to secure the lien. Mathers v. Connelly, 95 N.H. 107. In the absence of waiver failure to comply with the statutory provisions for perfecting the mechanic's lien is usually fatal. Couillard v. O'Connor, 97 N.H. 89; Ferns v. Company, 81 N.H. 283. The great variation the statutes of other states has made the decisional law of other jurisdictions of limited value in the construction of our own law. Boulia-Gorrell Lumber Co. v. Company, 84 N.H. 174, 179;" 3 Powell, Real Property, s. 483 (1952). "The most common, probably the most important, and quite certainly the most complicated of the liens created by statute . . . is the mechanic's lien." IV American Law of Property, s. 16.106F (1952).
When the plaintiff submitted its final bill on January 31, 1951, there was included in the total debits and credits and enclosed therewith an invoice entitled "Materials delivered to complete contract." No materials were directly furnished or delivered by the plaintiff after that date and previous to his attachment of May 12, 1951. However the plaintiff claims that the fifty feet of base molding or baseboard, costing $10.50, that was obtained elsewhere and charged to it by deduction from its account in April constitutes a subsequent delivery which is within ninety days of the attachment. Since this material was "short," the Trial Court was justified in treating it as a replacement of material originally furnished under the contract. "The rule seems to be well settled that, where a contract to furnish materials is to be regarded as completed, a subsequent gratuitous furnishing of material in the nature of a substitution or replacement to remedy a defect in the material originally delivered will not operate to extend the time within which to claim a mechanic's lien." Anno. 54 A.L.R. 984.
The material for the ticket booth, costing $50, was never furnished by the plaintiff because the architect did not submit the specifications therefor. The materials were furnished by another and the amount of $50 deducted from plaintiff's bill. The statement in the Court's findings that the booth was later furnished by someone else "under contract with the receiver" is not supported by any evidence in the case and appears to be an inadvertent error. The failure of the architect to furnish the specifications was a valid excuse for non-delivery by the plaintiff "but did not alter the fact that the attachment was not made" within the statutory period of ninety days. Freeto v. Houghton, 58 N.H. 100, 101. The statutory period of ninety days in our mechanic's lien statute is neither shortened nor extended by insolvency, death or breach of contract. Russell v. Howell, 74 N.H. 551; Freeto v. Houghton, supra. The failure to perfect the lien within ninety days results in its expiration in the absence of a waiver which is not present in this case. A receivership frequently entails a long line of creditors and a short list of assets but affords no basis for extending the statutory period for perfecting a mechanic's lien in this case.
Judgment on the verdict.
GOODNOW, J., did not sit: LAMPRON, J., was absent: the others concurred.