
    Bohunek v. Smith et al.
    (Decided April 21, 1930.)
    
      Mr. C. T. Austin, for plaintiff.
    
      Messrs. Garfield, Cross, MacGregor, Daoust é Baldwin and Mr. E. 8. Lindemann, for defendants.
   Lemebt, P. J.

This cause comes into this court on appeal from the common pleas court of Cuyahoga county, wherein Edward V. Bohunek was plaintiff, and Samuel L. Smith and Ellen L. Smith were defendants, in which court, after trial was had, judgment was rendered for plaintiff and against the defendants.

The question in this ease is whether or not a subcontractor under a contract which requires him to furnish the material and labor and install a certain heating system as per plans and specifications, including a guaranty of all materials and workmanship against leaks and other imperfections for a period of one year from the date of installation, having been called in to do a small repair job fourteen months after the installation was completed, can obtain a mechanic’s lien, notwithstanding the provision of the statute, Section 8314, General Code, that the affidavit for such lien “shall be filed within sixty days from the date on which the last of the machinery, materials or fuel shall have been furnished at the building, or the last of the labor shall have been performed.” So that the action before us is one to foreclose a mechanic’s lien.

The defendants Smith are the owners of the residence property located at 19001 South Park Boulevard, Shaker Heights, Ohio.

The plaintiff was engaged in the plumbing and heating business and was a subcontractor under an agreement with one W. H. Andrews, which agreement was dated September 16, 1925. The contract of the plaintiff was made with W. H. Andrews, the general contractor in charge of the building, who accepted plaintiff’s offer under date of September 21, 1925. Late in December, 1925, plaintiff commenced work. The installation was sufficiently under way to permit temporary heat to be turned on in the spring of 1926. On November 30, 1926, the plaintiff rendered a bill to W. H. Andrews, billing the entire job amounting to $5,300, excepting however an item of $150, required for finishing.

The contract above referred to calls for no more than labor, materials, and installation, and for a guaranty for a year from the time of installation. The record discloses that the installation was completed on December 30,1926, and the one-year guaranty therefore expired on December 30, 1927, so that the repair work which was done in February, 1928, was in no way referable to or called for by the contract.

The record discloses that the house was finally completed under the contract, and the entire job, covering all the trades as well as the heating, was finally accepted by the general contractor, and by the architect in behalf of the owner, within the week of January 21, 1927. Some time in the early part of 1928 the architect who had supervised the original construction of the house requested a representative of a heating system to examine a certain radiator in the house, one that had not been producing or turning out a proper amount of heat, and on February 2,1928, a man in the employ of plaintiff came to the house of defendants, took up a portion of the floor in one room, and replaced a certain pipe which he found to be trapped. There is evidence in the record that the trapped pipe was occasioned by faulty workmanship, and that the same was replaced with a larger pipe than originally used in the installation of the system. No bill was ever rendered by plaintiff to defendants for the work done on or about February 2, 1928. Plaintiff claims that such work was done pursuant to carrying out the terms of his contract, namely, that of servicing the system for a period of one year after the date of installation, and that he did not consider the job completed until after the work of February 2,1928, which, as above stated, was more than thirteen months after the installation.

The defendants claim that the work of February 2, 1928, had no relation to the original contract, which had long before expired. The work which was done on February 2, 1928, was a small repair job for which no charge was made, on plaintiff’s theory that he could connect it with the contractual obligation of guaranty for one year after installation.

If this bill for repair work had been charged to defendants, they would no doubt have been required to pay for it, but it is not the basis for the lien claimed herein which is based on the work done under the contract some fifteen months before. The plaintiff, therefore, would be obliged to establish that this work was done pursuant to the original contract, and as a part of the obligation imposed upon him under that contract. Bearing in mind that plaintiff’s contractual obligation went no further than to install the heating system, and guarantee against leaks or other imperfections for one year after installation, it follows that the defendants had no right to require the plaintiff to do anything in February, 1928, without charge, as a part of the original contract for which he was entitled to make no extra charge. It is equally true that plaintiff by merely failing to make a charge, or by asserting that in his opinion he was required to continue for an indefinite period of years making any repairs that might arise, the contract containing no provision to that effect, could not set up this work done in February, 1928, as the last item of the work completed under the contract of 1926.

Section 8310, General Code, providing for a mechanic’s lien, says that a contractor may have a lien for labor or material “by virtue of a contract, express or implied, with the owner,” etc., and that a subcontractor may have such a lien on “carrying forward, performing, or completing any such contract.” Thus it becomes incumbent upon plaintiff to show that the labor which he did in February, 1928, was done as a part of the contract made in 1925 and performed in 1926. Otherwise such work was done on a separate arrangement or agreement, and might have been the subject of a separate lien for itself alone. In fact, the record before us shows that the original contract was made by Smith with Andrews, who in turn contracted with Bohunek, and there was no privity of contract between Smith and Bohunek. When, however, Bohunek was called upon to do the repair job in February, 1928, the arrangement was made directly with him, and not with Andrews, as would have been the case under the original contract; and, furthermore, there was no suggestion by either party that the work was done under the original contract, or was an obligation imposed by it.

As to the time for filing a lien, and whether or not the same is extended by doing a repair job after substantial performance of the contract, has been passed upon by the Supreme Court of Ohio in King, Gilbert & Warner v. Ship Building Co., 50 Ohio St., 320, 34 N. E., 436.

Again, Higgins Mfg. Co. v. Hinig, 8 Abs., 168, is in direct line with the case at bar, in that it holds, among other things, that where a subcontractor who has accepted the notes of the general contractor in payment of his lien, and has allowed time for filing of lien to elapse, cannot, by doing repair work, revive his right to a lien.

The case of Koblitz & Son v. Arnold, 22 C. C. (N. S.), 410, 33 C. D., 648, is a case directly in point.

It has been decided in this state and other jurisdictions that even if the work done was by way of correction of a defective item performed under the contract, it could and would not extend the time for a lien. Taylor Bros. v. Gill, 126 Okl., 293, 259 P., 236, 54 A. L. R., 979; Meyer Mfg. Co. v. Sellers, 192 Mo. App., 489, 182 S. W., 789; Voightman & Co. v. So. Ry. Co., 123 Tenn., 452, 131 S. W., 982, Ann. Cas., 1912C, 211.

The rule seems to be well established that where a contract to furnish material is to be regarded as completed a subsequent gratuitous furnishment of material, in the nature of a substitution or replacement to remedy a defect in material originally delivered, will not operate to extend the time within which to claim a mechanic’s lien; the presumption being that repair items performed after the installation are done under separate contracts. Buchanan, Recr., v. Selden, 43 Neb., 559, 61 N. W., 732.

We therefore find in the instant case that the question presented is a simple and not a difficult one. In short, Smith, the defendant, contracts with Andrews on a general contract, including a heating system; Andrews subcontracts with Bohunek, who finishes the job, taking the notes of Andrews, who has himself been paid in full by Smith; fourteen months after the job is completed Smith calls, not on Andrews, with whom his contract was made, but directly on Bohunek, to do a small repair job; fifteen months after completion of the original contract, Bohunek files his lien. We do not believe that the Mechanics’ Lien Law of Ohio was ever intended to permit a lien under such circumstances. If the owner, under such circumstances, may be required to pay a subcontractor after he has already paid the principal contractor, surely the subcontractor must show a liberal compliance with the law, and must file his lien within sixty days, and that was not done in the instant case.

We therefore find and hold that the plaintiff was not entitled to maintain a lien against the property of the defendants, and a decree may be drawn for defendants.

Decree for defendants.

Sherick and Roberts, JJ., concur.

Lemert and Sherick, JJ., of the Fifth Appellate District, and Roberts, J., of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.  