
    No. 20041
    Emma Matzinger et al v. The Harvard Lumber Company.
    Error to the Court of Appeals of Cuyahoga county.
    755. MECHANICS’ LIENS — 1. Requirements of 8312 GC. as to notice to owner, apply to contractor and subcontractor, but not to materialmen.
    2. Whether materials furnished by a dealer to a contractor, were selected from stock of the dealer, or made by dealer in his own shop, or procured for the purpose from another dealer, he is a materialman, and not a subcontractor.
    3. Provisions of 8323 GC., authorize payment of attorney fees, only out of the fund realized for lien claims found valid.
   MATTHIAS, J.

1. The provisions of Section 8312, General Code, requiring notice to be served upon the owner of a structure being erected under contract, apply to the contractor and sub-contractor but not to material men.

2. Whether materials furnished by a dealer to a contractor to be used in the process of the erection of a building were selected from the stock of the dealer or made by him in his own establishment or procured from another dealer, having nothing to do relative to the installation of said materials or the fabrication thereof into the structure, is a material man and not a sub-contractor.

3. The provisions of Section 8323, General Code, authorize the payment of an attorney fee only out of the fund realized for lien claimants, which fund is the sum applicable to the payment of mechanics’ lien claims found to be valid.

Jones, Day, Allen, Kinkade and Robinson, JJ., concur. Marshall, CJ.,, concurs in propositions 1 and 2 of the syllabus and in the judgment.

Judgment modified and affirmed.  