
    No. 224
    MARGINEAN et v. SUPPLY CO.
    No. 18854.
    Supreme Court
    Motion to direct Trumbull Appeals to certify. Dock.
    Dec. 9, 1924,
    2 Abs. 770.
    Motion overruled,
    3 Abs. 98.
    755. MECHANICS’ LIENS—Does person furnishing material directly to owner come under head of contractor, making it necessary for him to file with the owner, a preliminary affidavit as required by statute, before affidavit effecting lien is filed?
    Attorneys—Paul Kightlinger and Jay Buch-walter, Warren, for Marginean; R. H. Patchin, Warren, for Supply Co.
   Alex Marginean was the . owner of real estate. He made an oral contract with one Stillwagon, president of the Storage Transfer & - Supply Co. for material to be used in the construction thereon of a two story brick building. Material was furnished until Jan. 1919. In'March, 1919, the Supply Co. filed an affidavit attempting to effect a lien upon the premises of Marginean for $1,882. Marginean claimed that the Company did not file with him a preliminary,affidavit as required by 8312 GC., applying to contractors.

.The Company- contended that it was no corn tractor, merely a material man. Marginean claims that the Company was a contractor as evidenced by its action. The Trumbull Common Pleas rendered a judgment in favor of the Supply Company and held the lien was valid. On. prosecution of error, the Court of Appeals held that the lien was invalid. Upon a rehearing the same court held:

1. That the Storage Transfer & Supply Co. was a material man, only, furnishing building material purchased by the owner for use in tbe building erected on the premises described in the petition, and Us. such material man, was not required under 8312 GC. to furnish the preliminary affidavit therein' required of contractors and sub-contractors.

2. The Supply Go. had done all things necessary to perfect its mechanics’ lien.

3. The said lien' is valid and _ subsisting against the property. One question is presented to the Supreme Court:

Dees the dealer in building supplies, there being no intervening contractor, sub-contractor or material man, become as to the owner, a contractor? '■ ' • i ■  