OSCAR GEORGE, Inc., a corporation of the State of Delaware, Plaintiff Below, Appellant,
Elmer E. POTTS, Jr., and Charlotte L. Potts, his wife, owners or reputed owners, and Delaire Corporation, a corporation of the State of Delaware, General Contractors, Defendants Below, Appellees.
Action under mechanics' lien law. The Superior Court, New Castle County, granted motion asking that judgment be refused notwithstanding statement of claim and dismissed the action and plaintiff appealed. The Supreme Court, Bramhall, J., held that affidavit attached to statement of claim averring that facts contained in statement of claim were true and correct ‘ to the best of his knowledge and belief,’ was insufficient under statute providing that statement of claim be supported by affidavit of plaintiff ‘ that the facts therein are true and correct.’
Aubrey B. Lank (of Logan, Marvel, Boggs & Theisen), Wilmington, for appellant.
Louis J. Finger (of Richards, Layton & Finger), Wilmington, for appellees.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
This appeal is from the decision of the court below in dismissing an action under the mechanic's lien law by reason of an alleged defective affidavit to a statement of claim made upon ‘ knowledge and belief’ .
The plaintiff, a Delaware corporation, was a subcontractor for the Delaire Corporation, the general contractor for the construction of a home for the individual appellees, Elmer E. Potts, Jr. and Charlotte L. Potts, on a tract of land in a development in New Castle County known as Silverside Heights. Prior to the expiration of the 90-day period from the furnishing of the last materials, labor and supplies, appellant filed a mechanic's lien against the individual appellees' property. The affidavit attached to the statement of claim filed by appellant was made by the president of the corporation, in which it was averred that the facts contained in the statement of claim were true and correct ‘ to the best of his knowledge and belief’ .
[49 Del. 297] Appellees above named filed an answer, an affidavit of defense and a motion under Rule 12(aa 3) of the Superior Court, Del.C.Ann., asking that judgment be refused notwithstanding the statement of claim. This motion was sustained by the lower court, which resulted in the dismissal of appellant's action. Appellant appealed.
The sole question is whether or not the affidavit, based upon knowledge and belief, meets the requirement of the statute.
The statute 25 Del.C. § 2712(c), provides that the statement of claim be supported by an affidavit of the plaintiff ‘ that the facts therein are true and correct.’ The trial judge held that this affidavit did not conform to the provisions of this statute and dismissed appellant's case. In doing so, he stated that he felt bound by the case of Heitz
v. Sayers, 1 W.W.Harr. 221, 113 A. 901. The latter decision is directly in point. It was decided in 1921 and has since been followed in this state in other unreported decisions. The trial judge felt that the question of whether or not that decision and the decisions of the Superior Court following it should be overruled was a question for this court. In this he was undoubtedly correct.
Appellant contends that his affidavit substantially complies with the provisions of the statute. He says that the inclusion in the affidavit of the words ‘ to the best of his knowledge and belief’ does not detract from the positive statement in the affidavit that the facts are true and correct. As for the case of
Heitz v. Sayers he says that it was wrongly decided and that the sole basis for the decision was the application of the rule that statutes in derogation of the common law are to be strictly construed. He cites Warner Co. v. Leedom Construction Co., Del., 97 A.2d 884, in which the excessive strictness of construction of the mechanics lien statute based on this principle was deprecated.
As for appellant's first argument of substantial compliance with the statute, it must be admitted that there is much to be said. There is high authority supporting it. [49 Del. 298] Pratt v. Stevens,94 N.Y. 387. In the absence of the decisions of this court in the case of Heitz v. Sayers, supra, and the unreported cases following it for a period of approximately 35 years, plus the re-enactment of the statute in the Delaware Code of 1953, we should be inclined to accept appellant's contention in this respect. However, we cannot disregard these decisions nor the action of the legislature in re-enacting ...