
    Higgins Manufacturing Co. v. Hinig et al.
    (Decided January 20, 1930.)
    
      Mr. A. H. Fiebach, for plaintiff.
    
      Messrs. Frank & Graeff and Messrs. Mooney, Hahn, Loeser, Keough c& Beam, for defendants.
   Vickery, P. J.

This cause comes into this court on appeal from the common pleas court of Cuyahoga county. A transcript of the evidence taken in the court below was introduced in this court, and we have heard it upon the same evidence considered in the court below.

The only question involved in this lawsuit is whether the Higgins Manufacturing Company had a lien for some $1,100 on the real estate described in the petition, owned by the Dodds.

It seems that the Dodds had made a contract with a general contractor by the name of Benjamin C. Hinig, who was a well-to-do and reputable contractor who had built many high-class houses in the vicinity where this house was built, and perhaps in other places in the city. The general contract was something in the neighborhood of $113,000 for the erection and completion of this house, and the only dealings that the owners had were with the general contractor, who sublet to the various trades different contracts.

The contract with plaintiff, the Higgins Manufacturing Company, was for something over $1,100, and that included the weather stripping and screens on the house. The weather strips and screens were installed and completed some time before October, 1926, the parties moving into the house in October, the contract for the erection of the house having been let in 1925, and the architect and the owners testified in this case that the house had been completed when the owners moved in, that all the contract price had been paid to Hinig by the owners, and they had lived in the house some 16 or 18 months when, for some purpose, the Higgins Manufacturing Company went back to the place and worked two hours or more. It is important to bear this in mind because it is upon this work that the Higgins Manufacturing Company proposes to base their claim for a lien.

That the Higgins Manufacturing Company did go back and do something about the weather stripping, and did fix the screens, may be true, and it is perhaps true that the owner asked them to come back. But does that show that this was a part of the original contract? Can any house that has been occupied for a period of eighteen months, a new house, escape the ravages of time in settling and so forth, so that it may not be necessary to readjust the weather stripping, the screens, doors, and window sashes ? If the weather stripping was out of place, even though it had been perfect when it was put in and éverything was completed, as the evidence shows it was in this case, is it incredible to think that the owner in such a case, knowing who had put in the weather stripping and screens, should call upon the same man to readjust them? Can it be possible that that could be called a part of the original contract?

Now it must be remembered that there was no contractual relation between the Higgins Manufacturing Company and the owners of this property. They (Higgins Company) were simply subcontractors of the general contractor, Hinig, and Hinig had adjusted and settled with them and had given them a promissory note, and had renewed it many times, and then, unfortunately for the Higgins Manufacturing Company, and perhaps for others, Hinig failed and went into bankruptcy; and then eighteen months after this house had been accepted, and the architect had certified that it was completed and had been turned over to the owners, then, because they could not get their money from Hinig, the Higgins Manufacturing Company go back and do a couple of hours work, upon which they try to base a lien and compel the owner who has honestly and fairly paid the contractor to again pay the sum of $1,100, when the Higgins Company in the beginning apparently trusted their employer, the contractor, fully and entirely; and only after they could not recover from the contractor do they seek to do a little work on the property to keep their lien alive. If such a condition of things were permitted to exist, no matter how careful the owners of property might be, they could not escape paying twice or oftener for work done and material furnished on property. If this subcontractor could do that sort of thing, every other subcontractor could do it, and even though there had been no attention paid by the subcontractors, they could, by going back on some trivial pretext or another, if the door had sagged, or the weather stripping had got out of order, revive a lien they might have secured had they taken proper steps in the first instance.

Now this is a court of equity, and, if any persons were ever guilty of laches, this record shows the Manufacturing Company was guilty of laches in this case, but the truth of it is that the company, as it had been dealing with Hinig for a long period of time, had regarded him as perfectly solvent, and one of those unfortunate circumstances occurred that has ruined many builders and contractors, such as a slump in the value and sales of property and consequent inability of people to buy and pay for real property and the building thereon.

Now it is singular in this case that the Higgins Manufacturing Company had done like work on three or four other big jobs that Hinig had handled for other persons, and that at just about the same time that their man put in two hours work upon this place, he also went around to each of these various other places and did a couple of hours of work. It looks as though it was done for the purpose of recovering against the owners of the various properties something that the manufacturing company had failed to collect from the contractor with whom it had its contract. The lien law, though to protect subcontractors and furnishers of materials, must be strictly complied with, for the whole mechanics ’ lien law is in derogation of the contractual rights that the owners of property had under the common law. Under the common law there would be no claim whatever by the materialman against an owner of property who had made a contract with the principal contractor, and it is only by virtue of the statute that he can have any claim; and, being in derogation of common law, it must be strictly construed.

We do not put much faith in the arguments of the plaintiff in this action about the affidavit that was filed in this case. We think it substantially complies with the law, but we do think that the evidence clearly shows that all this work, if it was done at all, was done as repair work and not as a part of the original contract. That work had been completed; it had been so stated by the parties and the general contractor. A bill had been rendered by plaintiff to the general contractor, who had given his notes to pay for it, and whatever work was done was simply repairing things which will get out of order around any new home, or old home either for that matter, and the wonder is if one can find any house that has been built for eighteen months and occupied where windows and doors or something do not need adjusting, and merely because the owner called in the party who put them up does not extend the life of the old contract and make it a part of the original contract. The work done was simply adjusting and repairing, and we think that is all the evidence shows in this case.

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

Decree for defendants.

Levine, J., concurs.

Sullivan, J., not participating.  