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Van Den Heuvel v. Wisnuluski

Superior Court of Delaware, New Castle County

April 1, 1954

VAN DEN HEUVEL
v.
WISNULUSKI.

Proceeding to obtain mechanics' lien. The Superior Court, Richards, P. J., held that, where contractor commenced original work of grading defendant's lawn on October 3 and completed it on October 8, 1951, but did make additional fill on defendant's lawn on December 22, 1951, because of situation created by subsequent installation of water and sewer pipes, there was substantial performance of original contract on October 8, and the December 22 work, which was not trivial in nature but something which had not been foreseen at time grading was done, did not extend time for filing a mechanics' lien.

Judgment for defendant.

Page 382

The plaintiff seeks to recover a Mechanic's Lien against certain real estate owned by the defendant, located at 1105 South Rodney Street, Wilmington, Delaware, for labor performed and materials furnished on the credit of said real estate.

G. A. Peterson, Wilmington, for plaintiff.

Anthony F. Emory, Wilmington, for defendant.

Before RICHARDS, P. J., without a jury.

RICHARDS, President Judge.

As shown by the testimony, the plaintiff contracted with the defendant to grade the lawn on his property at 1105 South Rodney Street; he started to do the work on October 3, 1951, completed it on October 8, 1951.

Subsequently water and sewer pipes were put in on the property making it necessary to have some additional filling in [48 Del. 378] done. The defendant engaged the plaintiff to make the additional fills and he did the work on December 22, 1951.

Title 25, paragraph 2711(a), of the Code of 1953, provides that in order to obtain a mechanic's lien, a contractor must file his statement within 30 days after the expiration of 90 days from the completion of any structure contracted for by him and upon which he desires to secure a lien.

There is a conflict of testimony as to the work which the plaintiff claims to have done on defendant's lawn on December 22, 1951, but it clearly appears that he commenced the original work of grading the lawn on October 3 and completed it on October 8, 1951. The plaintiff's testimony as to this is undisputed.

Admitting that the plaintiff did make an additional fill on defendant's lawn on December 22, 1951, I am convinced that it was not a part of the original work of grading the lawn which he contracted to do, but was made necessary by running the water and sewer pipes in the property.

It was not work of a trivial nature, but something which was not foreseen at the time the grading was done.

There was a substantial performance of the original contract on October 8, and the work which the plaintiff did on December 22, did not extend the time for filing a mechanic's lien. Breeding v. ...


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