
    Walter v. Brothers et al.
    
      (Decided February 11, 1932.)
    
      Mr. Paul R. Lamiell and Mr. William R. Thom, for plaintiff.
    
      Messrs. Fisher, Leahy é Weinlraub, for defendants.
   Lemert, J.

This cause comes into this court upon appeal from the court of common pleas of Stark county, in which Earl V. Walter was plaintiff and Arthur M. Brothers and others were defendants. The plaintiff sued to foreclose a mechanic’s lien upon the property of Arthur Brothers, which had been sold to Arthur Lavin and Dorothy B. Lavin, judgment in the court below being for the plaintiff, from which finding the defendants Arthur Lavin and Dorothy B. Lavin have appealed.

It appears from the evidence in this case that on or about August, 1928, the plaintiff, Earl ¡V. Walter, entered into a verbal contract with defendant Arthur M. Brothers, the substance of which was that the plaintiff do certain plumbing work and certain heating work upon the property owned at said time by Brothers, and thereafter sold by Brothers to the defendants Arthur Lavin and Dorothy B. Lavin. The agreement to sell to the Lavins was made February, 1930, and the deed was executed and delivered March 1, 1930. Thereafter, on July 12, 1930, the plaintiff filed a mechanic’s lien with the recorder of Stark county, Ohio, upon the premises so purchased by the Lavins.

The principal issue raised in the case was that the plaintiff did not take and perfect his mechanic’s lien within sixty days after the last work was performed and material furnished.

An examination of the record before us discloses that the contract entered into between the parties herein was substantially performed between the 2d day of December, 1929, and the latter part of December, 1929, or the first of January, 1930, and that afterwards, to wit, on or about March 26, 1930, before the purchasers of the property moved into the house, plaintiff claims that he changed the steam return and adjusted the radiator valves. Covering the period from March 26, 1930, to July 12,1930, being about three and a half months, the only work or labor performed or material furnished was, as claimed by the plaintiff herein, on May 19, 1930. It is from this date plaintiff claims the lien, the claim of the defendants being that'the contract was substantially completed in January of 1930. Defendants further claim that the return of the plaintiff on March 26, 1930, to change the steam return and regulate the regulator, would not constitute an extension of time within which to take the lien; that granting and assuming that this was a material part of the •contract about three and a half months expired from the 26th day of March, 1930, when the change was made, until the taking of the mechanic’s lien — except the transaction of May 19, 1930. The record shows that plaintiff claims that he placed some asbestos lining on a pipe in the garage, and that by reason of this act the time for taking a lien has been extended.

It has been repeatedly held in Ohio and other jurisdictions that where work or material is in good faith furnished, at the request and with the knowledge of the owner, to remedy defects in the original work, this is sufficient to establish a new period from which the time for filing the affidavit or claim of a lien is to be computed; but where the work contracted for is completed according to contract, as the contractor believes, and he later discovers defects and voluntarily undertakes, after the time for completing the contract has expired, without authority from the owner, to remedy the trouble, it is held in most cases, especially where the work or material is trivial, that such work does not extend the time for filing a lien.

We note from the record that on May 3, 1930, the defendant Brothers signed schedules and petition in bankruptcy, and on May 13,1930, notice of bankruptcy was mailed to Walter. Keeping in mind that this last work, as claimed by Walter, was done on May 19,1930, these facts before us naturally bring up the question then of good faith on the part of Walter in doing the work that he claims he did on May 19,1930.

It has further been held that where a contractor, upon complaint of the owner, replaces without charge a certain plumbing fixture in substitution for a defective one furnished by him, such substitution constituted but a correction of a defective item furnished during the running of the account,-and did not operate to extend the time for filing the lien for work previously done; and again, where a subcontractor, at the request of the purchaser of a house, returns after eighteen months of occupancy by such purchaser, to repair work previously completed by him, the subcontractor cannot by so doing revive his right to a lien which he had allowed to expire. A true test is whether the alleged repairs are a necessary part of the proper completion and performance of the work which the lien claimant undertook to do, and an attempt in good faith to perform the contract, and not merely an effort to extend the time for filing an affidavit for a lien. This-is always a question of fact. There is nothing in the record before us to show that the plaintiff requested permission to do the work. Neither did he inform the defendants that he was about to do the work, and after completion of the work, if he did any, he did not notify the defendants that he had performed it.

This court in a case similar to the instant case, in the case of Bohunek v. Smith, 36 Ohio App., 146, 172 N. E., 852, held that work done by way of correction of defective items performed under contract does not extend the time for a lien, and that, when the contract to furnish material has been completed, subsequent gratuitous furnishing of material, in the nature of substituting, for the purpose of remedying defects, will not extend the time for filing a lien. "We are still in accord with this doctrine and believe it is consistent with numerous decisions of the various courts of Ohio.

Therefore, entertaining the aforesaid views, the finding and decree will be for the defendants, and the petition will be dismissed at plaintiff’s costs.

Decree for defendants.

Sherick, P. J., and Montgomery, J., concur.  