
    The Cincinnati Quarries Co. v. Hess, Aud., et al.
    (Decided December 19, 1927.)
    
      Messrs. Nichols, Morrill, Stewart & Ginter, for plaintiff.
    
      Mr. Charles P. Taft, 2d, prosecuting attorney, for Hess, auditor.
    
      Messrs. Nolle, O’Donnell, Geisler & Cash, for Henkel.
    
      
      Messrs. Bettman, Riesenberg, Cohen <& Steltenpohl, for receiver of Welling and Franz.
   Hamilton, P. J.

This case is here on appeal from the court of common pleas of Hamilton county.

The questions grow out of a contract between one Gran and the county commissioners, for the improvement of Red Bank avenue, and concerns the validity and priority of claims, and the validity of judgments and liens, on the funds due from the county for the payment of the work and materials furnished.

The controversy here is between the receiver of Welling and Franz, who claims a lien for the rental and moving of a concrete mixer, used on the work, the Cincinnati Quarries Company, the plaintiff, which claims a lien for material furnished, and August Henkel, as assignee of the claim of the Cincinnati Builders’ Supply Company, ¡whose claim is for materials furnished.

The validity of the claim of Welling and Franz depends upon whether or not a claim for the rental and moving of a concrete mixer, used on the job, will support a lien under the Mechanic’s Lien Law (Section 8309 et seq., General Code).

The validity of the lien of the receiver of Welling and Franz is determined by the case of Royal Indemnity Co. v. Day & Maddock Co., 114 Ohio St., 58, 150 N. E., 426, 44 A. L. R., 374. While the Royal Indemnity Company case involved the liability on a bond executed by a contractor to secure the execution of a contract for the construction of a public building, given in conformity to the requirements of the Code, the'court said in the syllabus

“The surety on a bond executed by a contractor for the construction of a public building, in conformity to the requirements of Sections 2365-1, 2365-2 and 2365-4, General Code, does not thereby obligate himself to pay the rental, contracted to be paid by the principal in the bond for the use of a concrete mixer, hoisting engine, or other machinery used as appliances, or part of the equipment to facilitate the performance by the contractor of his contract, nor does he obligate himself for any other expense incident to such rental use. ’ ’

In arriving at the decision, the Supreme Court necessarily determined the question whether or not the rental for the concrete mixer was within tbe term “material and labor,” and decided that it was not material and labor, but was to be classed as “appliances ” or “ equipment, ’ ’ and cited with approval 5 "Words and Phrases, 1 ed., 4410, to the effect that “implements” are not'materials for which a lien will lie.

It is argued that Welling and Franz furnished an operator for the mixer, and this fact would require a different rule. But this fact does not change the character of the claim. The claim is for the rental of a concrete mixer, and the cost of moving the same, and not for human labor furnished by them.

Our conclusion is that the claim comes within the rule pronounced by the Supreme Court in the case of Royal Indemnity Co. v. Day & Maddock Co., supra, and, on authority of that case, the claim of the receiver of Welling and Franz is held invalid, and is disallowed.

The other question in the case concerns the lien of Henkel, assignee of the claim of the Cincinnati Builders’ Supply Company. It appears that Henkel, assignee, filed his statement for mechanic’s lien on May 11, 1922. . Thq last item furnished by the Cincinnati Builders’ Supply Company was on November 7, 1921. Henkel’s hen was not filed within the required four months.

It further appears that the Cincinnati Quarries Company filed a lien on May 12, 1922, which was within four months of the furnishing of the last material by it.

Henkel’s right to share depends upon the construction of, and the rights secured under, Sections 8325 and 8328, General Code. These sections protect a lien holder who has filed a lien after the expiration of four months by giving him the right to intervene, where a sworn statement of notice has been filed with the owner, board, or officer by other claimants “before the next subsequent payment under the contract, or within ten days thereafter.”

It is argued in behalf of the Quarries Company that Henkel’s lien was filed the day preceding the filing of the lien of the Quarries Company; that the filing of the lien of the Quarries Company did not revive the lien of Henkel, assignee, but that it was incumbent upon Henkel, in order to bring himself within the protection of the statute, to file his lien subsequent to the filing of the lien of the Quarries Company, and within ten days thereafter, or before the next subsequent payment under the contract.

In other words, it is claimed by the Quarries Company that the fact that Henkel’s lien was on file during the ten days did not entitle him to the pro rata payment provided for in Section 8328.

We axe of opinion that the fact that Henkel’s lien was on file during the whole of the ten days would bring him within the protection of the statute, and that it was not necessary to go through the form of withdrawing and refiling. The reason for the filing of the lien is for the purpose of giving proper notice, for the protection of parties, including the owner, board, or officer, as well as contractors and subcontractors. Such notice is as effectively given by having the lien on file during the ten days, as it would be by the act of refiling within the ten days. He has effectively intervened.

We therefore hold that August Henkel, assignee of the claim of the Cincinnati Builders’ Supply Company, is entitled to share pro rata with the other contractors and materialmen in the apportionment of the funds in question.

Questions concerning other matters were presented to the trial court and determined, and are not controverted here. We are in accord with the decision in those matters.

A like decree may be entered here to that entered in the trial court, with the exception that the lien of Welling and Franz will be held invalid.

Decree accordingly.

Mills and Cushing, JJ., concur.  