
    L. C. CALTRIDER vs. EDWARD O. WEANT.
    
      Negligence of Attorney — Filing of Mechanic1s Lien — Evi-' dence — Estoppel to Assert Lien — Gross-examination of Witness.
    
    An attorney is liable to Ms client for loss caused by Ms failure to exercise reasonable care and sMll in carrying out tbe client’s instructions. • p. 346
    A prayer that “under the pleadings in this case there is no legally sufficient evidence from which the jury may find for the plaintiff and tbeir verdict must be for the defendant” is insufficient as a variance prayer, under Code, art. 5, see. 9A. p. 344
    In an action against an attorney on account of his failure to’ file a mechanic’s lien for materials furnished by plaintiff to a contractor on a building, held that the evidence showed that plaintiff had served notice on the owner of his intention to claim a lien, as required by Code, art. 63, sec. 11, so that the failure to file the claim was a source of loss to plaintiff. pp. 344-346
    One was not estopped to claim a mechanic’s lien for materials furnished a contractor for the erection of a building because, being an officer of a building association which had made a loan for the construction of the building, he had allowed the proceeds of the loan to be withdrawn, on the joint order of the borrower and another officer of the association, and paid to the contractor, without requiring payment for the materials, it not appearing that he knew when withdrawals were to be made, or that he could have prevented them. pp. 347-356
    In order to assert a lien for materials furnished in the erection of a house, it is not necessary to show that the material was actually used in the house. p. 356
    In an action against an attorney for failure to file a mechanic’s lien, as instructed to do, wherein he claimed that he had mailed the papers to the clerk of the court, held that, he having testified that he had previously recorded papers in that court, it was proper to cross-examine him as to whether, in those previous cases, he had received a ticket, or had sent the recording •charges with the papers, or had received a bill tberefor, as an omission in tbis respect might bave been regarded by the jury as calling for further inquiry by him as to whether the clerk had received the mechanic’s lien papers. pp. 350, 351
    Eor a like reason it was error to exclude testimony by the clerk as to the- practice in bis office, upon receipt of papers for record, in making charges and sending bills. p. 351
    
      Decided February 6th, 1925.
    
    Appeal from the Oirciuit Oonrt for Howard 'County (For~ •sythb, J.).
    Action by L. O. Calitrider, trading as L. O. O'altrider & Son, against Ediward O. Weant. From a judgment for defendamt, plaintiff appeals.
    Reversed,
    The cause was argued before Hrner, Adkins, Orfutt, Digges, and Bond, ,LJ.
    
      Gwynn Nelson and J. Howard Murray, submitting on brief, for the appellant.
    
      James Clark, for the appellee.
   Digges, J.,

delivered the opinion of -the Court.

The cause of action in this case is the alleged negligence of the appellee, ,a practicing attorney at law, in his failure to obtain a mechanic’s lien securing the payment of a claim for materials fiirndshed the contractor by the appellant, which claim had been placed in his hands for collection, with directions given to obtain the mechanic’s lien.

WThen business is committed to .an attorney by his client, and for which the client is expedted to make compensation to the attorney, the law governing such a contract requires that the attorney act diligently in protecting and preserving his client’s interest.. In 2 R. C. L. 1012, it is stated: “The law implies a promise on the part of attorneys that they will execute the business entrusted to their professional man¡age¡ment with a reasonable degree of oare, skill and dispatch, and they are liable to an action if gtuilty of a default in either of these duties -whereby their clients axe injured, and this liability of the attorney is not-.affected by the client’s diligence or the Want of it, unless ¡stipulated by special contract.” In 6 C. J. 704, it is said: “An attorney’s ¡duty, where be is especially instructed, is to follow the instructions of bis client except as to matters of detail connected with the suit, and he is1 liable for all loss resulting from his failure to follow such instructions with reasonable promptness .and oare.” And in 2 R. C. L. 1014: “Whenever an attorney disobeys the lawful instructions of his client and a -loss ensues^, he is responsible for snob loss.”

'This general doctrine has been recognized and laid down in a number of cases ¡decided by this Oourt. Cochrane v. Little, 71 Md. 323; Watson v. Calvert Bldg. & Loan Assn., 91 Md. 25. In tbe Cochrane case this Oourt adopted with approval tbe language of Lord Chancellor Cottenham in delivering the opinion in the case of Hart v. Frame, 6 Cl. & Fin. 193, 209: “A client who has employed an attorney has a right to bis diligence, his knowledge, and his skill; and whether he had not so much of these qualities' as he was bound to have, or having them, neglected to employ them, the law properly mlakes him liable for the loss which has ¡occurred to his employer.” The language used in the Calvert Bldg. & Loan Association case, supra, was: “An attorney at law is liable to bis client for the possession of a reasonable degree of skill in his pxofeission as well as for the exercise of a like degree of diligence in the conduct of the transaction about which he is employed. If he fail in either respect he will be responsible to his client for the loss which the latter may sustain therefrom. This responsibility of the attorney, although ordinarily enforced by an action of case for negligence in the discharge of his professional duties, in reality rests upon his employment by the client and is contractual in its nature. Before the attorney can be made liable, it must .appear that the loss for which he .is sought to he held arose from his failure or neglect to discharge some duty which Was fairly within the purview of his employment.”

The facts in the instant case are substantially that Miss Florence E. Oarr, being the owner of a tract of land in Reisterstown, Baltimore County, late in the year 1921 determined to have built a residence on ber property. At the time she had $1,500 and applied to the Reisterstown Thrift & Loan Association for .a mortgage of $2,500, so that with this amount, in addition to her own money, she might pay for the building proposed to he constructed. The association agreed to mate the lo>an upon the condition that the $2,500 loaned by it should be pooled with the money of Miss Oarr and placed in the Reisterstown Savings Bank, subject to the joint check of Miss Oarr .and the chairman of the building committee appointed by tbe association for the purpose of supervising the payment of said money. This arrangement was perfected by the appointment of a building committee, consisting of Welsh (chairman), Marshall and Wolf, and tbe money was placed, as agreed, in the hank, to he drawn out for the purpose of playing for materials and labor used and expended in the construction of the building, upon the check of Miss Oarr, eountersigined by Welsh, chairman of the building committee. .

The contract or agreement was then made by Miss O'arr with William H. Guest for the erection of tbe dwelling house, and a large portion of the lumber and building material entering into the construction was furnished to the contractor by L. O. Oaltrider, the appellant, the total price of which Was $1,586.20, of which amount the appellant had only received $714.24, leaving a balance then due of $871.96. A claim for this balance was in December, 1921, or January, 1922, placed iu the hands of the .appellee, an attorney, for collection, for the reason .that .the appellant had been unable to get further payments on this account from Guest, the1 contractor. At the time the claim was placed in the .attorney’s hands, the appellant, together with a Mr. Ducker and a Mr. Naylor, two other gentlemen who had claims against the contractor, went to the appellee’s office in Westminster, and consulted with him in regard to the collection of their respective accounts by filing a mechanic’® lien against the contractor and Miss Oarr. At first the appellee expressed douht as to being able to maintain a mechanic’s lien, for the reason that the appellant was a member of the building association which had loaned the money to- he poo-leid with the money of Miss Oarr and paid out upon the signature of Miss Oarr and the counter-sigji'atnre of the chairman of the building committee of the association; hut after investigation of the law the .appellee decided that a mechanic’s lien wo-uld lie, hut advised that efforts he made to- collect the money without resorting to that procedure at that time. This advice was acted upon, and the attorney made frequent trips from Westminster to Reisiterstown to attend meetings of the building association, in an effort to- collect appellant’s claim and those of Mr. Du-ciker and Mr. Naylor. On Eeibruary 14th, 1922, he was successful in collecting from the building association and Mis-s O-arr the sum of $950, which ou April 19-th he apportioned among the three claims which he represented, paying to the appellant as Ms proportionate part the sum of $540.20, thereby reducing the balance due the appellant on account, of his material claim to the sum of $331.76.

¡Shortly after the $950 was collected by the appellee, it was decided by the appellant, and the appellee was so- instructed, to- proceed to- secure the mechanic?» lien for the balance then due. The appellee prepared the notice to Miss Oarr, the owner, as required by section 11 of article 63 of the Oode of Public General Laws of Maryland, which notice was dated M-arch 7th, 1922, and delivered to the appellant, to be by him personally served upon the -owner, Miss Oarr. This was accordingly done by the appellant within the time prescribed by said section 11, being wi-tMn sixty days after furnishing the last material, which was furnished on January 12th, 1922. Nothing further was done by the appellant in reference to the laying of the lien, but this matter was left with the attorney to attend to, until, on or about July 31, 1922, it was discovered ¡that no- lien was of record in the clerk’s office of Baltimore County, and Mr. Weant ait that time was so informed by the .appellant and officers of the building association. Upon being acquainted with this fact, Mr. Weant expressed surprise, and told appellant that he had prepared the papers and sent them by mlail from. Week minster, directed to t-he clerk of the Circuit Oourt for Baltimore County, Towson, with instructions to file, and that he could not understood why they were not of record. Section 23 of article 63 provides that: “Every such deibt shall he a lien until after the expiration of six months after the work has been finished and materials furnished, .although no claim has been filed therefor, but no longer unless .the claim shall he filed at or before .the expiration of that period.”

In order to make effective a lien against the property of Miss Oarr, who was the owner and not the contractor, it was necessary to give her notice of intention to file a lien within sixty days from January 12th, the day upon Which the last material was furnished, and upon giving this notice a lien was created for the period of six months from January 12th, 19-22, or until July 12, 1922, and in order to continue the lien from and after that date it Was necessary that the lien he filed and recorded in the office of the clerk of the Circuit Court for Baltimore County. As a matter of fact, no Ben w.a.s filed and recorded as prescribed by said section 23, and the six month® within which it could be filed having expired on July 12th, 1922, no Ben longer existed or could be subsequently obtained.

Upon the appellant ascertaining that no Ben had been actually filed, he demanded of Weant that he be responsible for the balance due him, which dentad or request was refused, and .appellant, upon the refusal of the • appellee to guarantee the payment, thereupon informed the appellee that he would hold him responsible and would bring suit against him for the balance due. This suit was first brought in the Circuit Oourt for OarToll County, and upon motion of the plaintiff was removed to the Circuit Oourt for Howard County for trial, in which court, on April 7th, 1924, the ease was tried before a jury. After the conclusion of the testimony offered in behalf of the plaintiff and defendant, the plaintiff offered four prayers and the defendant four prayers; whereupon the court granted the first prayer of the defendant and did not act upon any of the other prayers offered or the special exceptions; whereupon the plaintiff excepted to the granting of the defendant’s first prayer, and the ruling of the court in- this respect constitutes the tenth hill of exception. There are ten exceptions; contained in the record, and the other nine are to rulings of the court upon the evidence during the pro'gress of the trial.

The defendant’s first prayer, granted by the court and constituting the tenth exception, will he first considered. This prayer is as follows: “The defendant prays the court to •instruct the jury that under the pleadings in this ease there is no legally sufficient evidence from which, the jury may find for the plaintiff and their verdict must be for the defendant.” The appellant contends that the granting of this prayer wias error, for the reason that it is a Variance prayer, and is not in accord with the provisions of chapter 110 of the Acts of 1914, now codified as section 9A of article 5 of the Code of Public General Laws-. Whether or not the contention of the appellant above s-et forth is correct is of no; consequence in the view we fake of this case. If the prayer granted by the lower court was intended as a variance prayer, it should not have been granted because it did not comply with the statute. On the other bland, if this prayer wias intended as a general demurrer - to the evidence, and in our opinion it Was so intended, it wias also improperly granted for the reason that we find from the record sufficient evidence to have submitted the ■case to the consideration of the jury. We will proceed to consider the case upon the theory that this prayer granted by the court wias intended to he, and Was, treated by the lower court .as being a general demurrer to the evidence; prayer.

The appellee’s first contention i:s thlat there is no- evidence in the record which shows that the notice required by section 11 of article 63 to be served upon the owner, Mis's Oarr, and which was prepared by the appellee 'and delivered to the appellant for1 service upon Miss, O'arr, Was in fact served within sixty days from January 12th, 1922, as prescribed by the statute, and that it was incumbent upon the plaintiff to show that the alleged negligence of Weant in not filing and having recorded the mechanic’s lien resulted in injuring the plaintiff, and that if ithe notice of intention to file a lien was not served Upon Miss Oarr within the time prescribed by the statute, no lien could he legally obtained, and therefore it was of no consequence to the appellant whether Weant was negligent or not in the failure to file and have recorded a lien within the six months period. If there is no evidence in the record legally sufficient for the jury to find that the notice Was served upon Miss Oarr by the appellant within sixty-days from January 12th, ,1922, this contention of Ithe appellee is unanswerable, .and it therefore becomes necessary to examine the testimony as contained in the record in respect to the time of service of the notice of intention to claim a lien. The only evidence in the record on this point is contained in the testimony of the appellant, and is as follows:

“Q. What did yon 'employ him to do? A. I asked him whether there could be a lien filed on the property. After his investigation of the matter he said there could and he made out notices. Three of us went together. Wei had different claims, the plumber and electrician had claims and we had some. He made notices out;for us all and advised ns to serve them in person on Miss Florence E. Oarr, the owner of the property, or if we did not do that, we had better1 do it by. registered mail and to he sure to get a return receipt to know it reached their hands. We all three of us delivered our lien notices to Miss Oarr personally in Baltimore, so as to he sure the matter Was served according to Ms direction. Q. Did Mr. Weant tell you you had to serve notice on the owner of your .intention to lay a lien ? A. Yes, sir. Q. Did he prepare the notice to that effect ? A. Yes, sir. Q. When did he prepare it for you? A. March 7, 1922. Q. Have you that paper there A. Yes, sir. Q. Who delivered that-paper ? A. I delivered it. (Paper in question shown counsel for defendant.) Q. Was that paper served on Miss Florence Oarr? A. Yes, sir, I served it. Q. By whom? A. Myself. Q. Did Mr. Weant give you any instruction® how to serve that paper, if so> what? A. He said I should, deliver it in person, which wlas preferable, but if I didn’t, to register it .and see that I got ia return receipt card. Q. What did Mr. Weant tell.you about filing a lien against 'this job? ('Objected to.) ('The Court) : Go ahead. A.He told me there could be .a lien filed and that w!as the notice. Q’. How long before the díate of this paper did you employ Mr. Weiant. Do you recall that? A. It was a day or two before that plaper was made out, to the best of my knowledge.”

Further testifying, witness siaid that when the claim Was first placed in Mr. Weant’s hands the Same amounted to eight or nine hundred dollars, part of which Mr. Weant Collected and remitted, less his charge of ten per cent., and that the money had been collected by Mr. Weant prior to the serving of the liien notice, his recollection being that $540 was collected. The witness identified the letter dated April 19th, 1922, from Mr. Weant, and said that (the .amount which Mr. Weant collected was made in 'one payment, Which Was not remitted until three months after it had been collected and ' that the two other gentlemen who also placed claim® in Mr. Weant’s hands had become uneasy about their money and asked the witness for some informlaition concerning the same; that the money had been collected about three months before the darte of the letter and that he h'ad employed him before that time.

“Q. Do you want to say anything? A. If permitted I will tell you; I will clear it up*. I employed him to take this lien .a day or two previous to the time it Was served. He was employed to take my case three months before the lien notice was made: but I had him take the lien. It was only a dlay or two when that lien was issued I employed him. Q. When you first employed him to collect the account? A. Yes, sir. Q. When was that? A. I later resolved to take the lien.”

This testimony of the appellant the jury was entitled to believe if they saw fit, and Was to the effect that he employed or instructed the appellee to take the lien a day or two before tbe notice, which was dated March 7th, was made out; that the appellee was employed to- take this lien a day or two previous to the time it was served. The one date that, is fixed by this testimony is March 7th, 19-22, the date of the notice, and the witness testified that he had instructed the appellee to lay the lien a day or two. before the notice was made out, and further, that the employment with the instruction to lay the lien was a day or two previous to the time the notice was served, thereby fixing the time of service as a day or two after the instruction given, which time of instruction was a day or two- previous to> the time that the notices were made out, that date being March 7th, 1922. This testimony, when examined critically, is positive to the effect that the notice was delivered to. Missi 'Oarr prior to March 12th, 1922. While it would have been a simple matter to ask this witness the direct question as to when the notice was served, thereby preventing argument, we think that the testimony as given was such, if believed by the jury, as to have enabled them to. say definitely that the notice was served before tbe expiration of sixty days from January 12th, 1922.

The second contention made by the appellee is. that the .appellant, being an officer of the building .association which loaned the money to Miss -Oarr to be expended in the construction of her building, and knowing! all of the conditions under which the fund was placed in hank, and how it was. to he withdrawn, and standing by and allowing same to be withdrawn and paid to- the contractor, Guest, without the contractor paying for the material entering into the construction, it would be inequitable to allow the appellant to. obtain a mechanic’s lien; that he would have been, by reason of such inaction on his part, estopped from obtaining a mechanic’s lien, and that being true, he w!asi not injured by the alleged negligence of the appellee. The .appellee in sup'port of this contention has cited 'three decisions, of this Court: Goldman v. Brinton, 90 Md. 259; Willison v. Douglas, 66 Md. 99; Pinning v. Skipper, 71 Md. 347. Upon an examination of these authorities it will be found that they do not support the contention of the appellee. In each of those cases this Oourt Was. construing section 3, ahtiele 63, Code of Puib. den. Laws of Maryland, which reads: “Ho person having such lien shall he con'sidereld as ■waiving the same by granting a credit or receiving notes or other securities, unless the same be received as payments or the lien be expressly waived, but the sole effect thereof shall he to prevent the institution of any proceedings to. enforce said lien until the expiration of the time -agreed upon.”

In Willison v. Douglas, supra, Willison, the plaintiff, together with the contractor, agreed with the owner, the defendant, to erect the building in conformity with the specifications for the sum of $1,493, .and at the same time executed a bond, together with one Brady, by the conditions of which they were io¡ save the owner, Douglas, harmless from any and all liability for work and labor done upon or materials furnished for said building beyond the sum of $1,493. Douglas, the owner, agreed to pay $500 on delivery of the lumber, and another sum of $500 on completion of the outside building, and to execute a mortgage in favor of Willison for $493, bearing interest at five per cent, pier .annum and payable in two years. The $1,000 in cash was paid by Douglas- in accordance with the terms of the -agreement, and it was admitted by Willison that he agreed to receive from Dbuglas a mortgage as security for the balance, .amounting to $493. Douglas afterward offered to execute a mortgage, and Willison refused to- accept it, oh the ground that Douglas, only had an equitable title to the property. Douglas -then offered to pay the sum intended to- he secured by the mortglage, in cash, which offer was also reflected by Willison. Under these conditions the court properly held that there was -a direct Waiver of the plaintiff’s right to a lien, for the reason that the defendant had agreed to pay in Cash the full amount of the contract price, and the plaintiff had given a bond conditioned that there Would be no lien for labor and materials, going into the construction of the house over and above the contract price.

In Pinning v. Skipper, 71 Md. 347, the facts were that Pinning Brothers entered into a written contract with •Skipper to furnish materials and labor in the erection for bim of certain houses. By the contract they agreed to give •Skipper a no-lien bond as a bar against liens upon said houses ■or either of them for work done or materials furnished or for labor or hire. At the time they gave to Skipper their bond wifth a surety, to which a copy of said contract was attached, conditioned for the faithful performance on their part of the terms and Conditions of the contract; and it was there held that -the stipulation to give a bond as a bar against liens upon said houses or either of them, and the giving of a bond conditioned for the faithful performance of that part •of the contract, constituted in lajw a waiver of lien for said work and materials. In the ease of Goldman v. Brinton, 90 Md. 259, the facts were that the holder of a mechanic's lien on unfinished houses induced persons to loan money to ■complete the same by promising to waive the priority of his lien, but subsequently refused to sign snob waiver, and it was held that the holder of the lien was estopped to set. up his lien against those making the advance.

It is only necessary to state the facts in the three eases relied upon to demonstrate that the decisions in those oases •can have no controlling influence upon the present ease. The appellant here, by no affirmative word or act, did anything which could be construed to be a waiver of bis right to obtain a mechanic’s lien, but it is argued that by failure to do something which in good conscience he should have ■done, he is estopped; or in other words, that by bis inaction rather than his affirmative act he should he estopped from ■obtaining a lien. We cannot consent to give this force and effect to the appellant’s conduct as disclosed by the record. He was an officer of the building association, but it was not his duty, nor did he have the authority, to sign the checks withdrawing the fund in question from bank, or prevent the withdrawal therefrom when a check Was presented signed by Miss Carr and counter-signed by Welsh, the chairman of the building committee. Even if we admit for the purpose of argument that he had access to such books and accounts of the building association as Would afford him knowledge of the condition of the Oarr'-Guest account, jet he could mot stop the withdrawal, or even know that a payment was about to be made until after it had been actually made, unless this information was given him by Miss Carr or some member of the building committee, and there is no evidence in the record of any such information. It is therefore our opinion that the record does not disclose any acts or evidence of failure to act on .the part of the appellant which would constitute a Waiver or estop him from laying and enforcing a mechanic’s lien. And it is evident that this must also have been the opinion of the appellee, for although having doubts on this 'question at first, after investigation' he advised that it could be successfully maintained, made out the notices of intention to lay the l'ien and, according to his ¡testimony, actually prepared the necessary papers, had them signed and sworn to by the appellant, and mailed .them to the clerk of the Circuit Court for Baltimore County for record.

The remaining questions to be decided are upon the rulings of the lower court on evidence, and are 'contained in the first nine exceptions. The first exception was abandoned by the appellant in his argument and brief.

The second exception is to .the refusal to permit the following question, propounded to the witness Carroll E. Caltrider': “Did yon see them use the material there in the erection of that house ?” This question Was immaterial, because it was not incumbent upon the appellant to prove that the material was actually used in the house. Brick Co. v. Dunkerly, 85 Md. 199; Md. Brick Co. v. Spilman, 76 Md. 337.

The third, fourth and fifth exceptions were to the action of the court in sustaining objections teo> questions propounded to the appellee on cross-examination in respect toi his knowledge of the practice and custom in the administration of the clerk’s office, as to what is done when papers are received for record. These questions were as follows:

“Q. Have you ever recorded 'any papers in the Circuit Court for Baltimore County for which the el'erk did not send you a ticket ? Q. In any paper's sent by you to 'the clerk of the Circuit Court for Baltimore County for recording, did you send the recording charges with the papers ? Q. In any other papers you recorded iu the Circuit Court for Baltimore County, you received a bill for recording the following month, didn’t you ?” We are of the opinion that these questions should have been permitted, for the reason that the witness had testified that previously he had, as attorney, filed ■other papers in the Circuit Court for Baltimore County, and therefore he had knowledge of the practice and custom of that •office upon receipt of such a paper as this. If in the present ■ease he sent the mechianic’s lien in question to be recorded, •and the usual practice of the office in sending a ticket upon its receipt, and a bill for the recording the succeeding month, Was not followed in this case, the 'omission might have been regarded by the jury as sufficient to call his attention to the possibility of his letter not having reached the clerk’s office, and to call for further inquiry as to its receipt iu order to relieve himself of the charge of negligence. The appellee knew that , this lien had to- be recorded within a definite limited period to become effective, and not having gotten an •acknowledgment of its receipt by the clerk of the Circuit Court for Baltimore County, the jury might have concluded that he should have followed up his initial letter by ¡ascertaining definitely Whether or not it had been received, in sufficient time to have prevented loss by bis letter going astray.

Tbe sixth, seventh, eighth and ninth exceptions Were to the court’s refusal to permit the chief clerk in the office of the clerk of the Circuit Court for Baltimore County to testify as to the practice in that office upon receipt of papers for record, and the method of making charge's and sending bills for costs of recording. The reasons given in disposing of the third, fourth and fifth exceptions are alike applicable to the sixth, seventh, eighth and ninth exceptions, .and we think the questions should have beeu permitted, although the probative value of the evidence thus presented is not great.

In the discussion of the evidence, we do not express any opinion upon the weight of the testimony, as this is for the jury, but do determine that 'there was error in the ruling of the lower court iu granting the defendant’s prayer that there is no legally sufficient evidence from which the jury may find for the plaintiff.

From what we have said, it will be seen, the judgment must be reversed.

/udgment reversed, and new trial awarded, with costs-to appellant.  