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Warner Co. v. Leedom Const. Co.

Supreme Court of Delaware

June 13, 1953

WARNER CO.
v.
LEEDOM CONST. CO. et al.

Action was brought to enforce a mechanics' lien. The Superior Court of New Castle County, 93 A.2d 316, Carey, J., entered judgment dismissing the action, and the plaintiff appealed. The Supreme Court, Southerland, C. J., held that requirement of mechanics' lien statute that statement of claim contain a designation of amount claimed to be due on each building or structure of land involved, if there be more than one, is mandatory, and that materialman's failure to comply substantially with it is fatal to existence of the lien.

Judgment affirmed.

[48 Del. 59] Appeal by plaintiff below from a judgment of the Superior Court of New Castle County dismissing an action to enforce a mechanics' lien. Affirmed.

Herbert L. Cobin, of Wilmington, for appellant.

Clyde M. England, Jr. and John Van Brunt, Jr., of Wilmington, for appellee Leedom Const. Co.

SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.

SOUTHERLAND, Chief Justice.

This appeal involves the construction and effect of the provision of the Delaware mechanics' lien law requiring apportionment of a joint lien claimed upon two or more structures.

The facts are these:

Some time in 1949 appellee Leedom Construction Company began the work of constructing a residential building development upon a tract of land in New Castle County owned by it. Franklin Builders, Incorporated,

Page 885

was the general contractor; and Masonsteel Construction Company was a subcontractor engaged to install, among other things, the concrete cellars, foundations and sidewalks. Warner Company, whose business is the [48 Del. 60] sale of concrete and other materials for construction purposes, was engaged by the Masonsteel Construction Company to supply concrete and other materials required by the latter. These parties will be referred to as Leedom, Franklin, Masonsteel and Warner.

Beginning on September 19, 1949, and ending on November 28, 1950, Warner supplied to the building project large quantities of concrete and other materials. These materials were incorporated into a large number of the houses that were built in the development. The materials were sold on open account and supplied as ordered from time to time. Franklin's method of development was to build several houses at a time and as these were sold to build others, depending upon the demand. Franklin's President testified: ‘ We built them as we sold them.’ The materials were delivered to the site of the development but usually not to any particular lot or structure. The material in a single delivery was frequently incorporated into two or more structures, and no record was kept-in many cases no record could be kept-of the quantity of identity of the materials used in a particular structure.

The materials furnished by Warner were incorporated into eighty-seven houses and appurtenant pavements. About two-thirds of the houses had been sold at the time when the present suit was filed.

Masonsteel was apparently in financial difficulties shortly after undertaking its work upon the project. In June, 1950, its unpaid balance with Warner was so large that an arrangement was effected under the terms of which future supplies were paid for by Franklin. The parties are not in accord as to the interpretation to be put upon the new arrangement; but in the view we take of the matter this dispute is unimportant. It is sufficient to note that the balance due is attributable to materials delivered prior to June 20, 1950.

On November 28, 1950, when Warner made its last delivery of materials to the project, there was due to it from Masonsteel [48 Del. 61] the sum of $16,318.25. Masonsteel was then apparently insolvent, and on February 12, 1951, Warner filed in the Superior Court a complaint and statement of claim in a mechanics' lien proceeding, asserting a lien upon all the eighty-seven structures above referred to. The statement of claim averred that all of the materials supplied by it had been furnished upon the credit of all the structures and premises on which the lien was asserted, and that the entire claim was due upon the structures and premises considered as a unit, that is, a continuous, single building development. Alternatively, Warner averred that if apportionment of the claim was required, it had in fact made such apportionment, as appeared from an exhibit attached to the statement of claim.

Leedom answered, setting up several defenses, only one of which we need consider. This is the defense that Warner had failed to set forth the amount claimed to be due upon each such structure, as required by the mechanics' lien statute. ...


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