Opinion
Decided May 19, 1930.
Mechanics' liens — Foreclosure — Pleading contract between owner and contractor, necessary — Copy of affidavit or lien notice not served upon owner — Sections 8310 and 8315, General Code.
1. In materialman's action to foreclose mechanic's lien, petition must allege contract between contractor and owner (Section 8310, General Code).
2. Where lienor did not serve copy of affidavit or notice of filing lien upon then owner in possession or agent, lien was invalid (Section 8315, General Code).
APPEAL: Court of Appeals for Cuyahoga county.
Messrs. Kohrman Kohrman, for plaintiff.
Mr. J.B. Oviatt, for defendants.
This cause is here on appeal from the common pleas court of Cuyahoga county, and the action is one to foreclose a mechanic's lien upon the property of defendant, Catherine McNeff. The petition alleges that in June, 1928, at the request of one Reimer, the plaintiff, the Becker Supply Company, delivered certain materials to a certain building on East 159th street, of which the Rialto Improvement Company was the owner, that said materials were used in the building and there is a claim of $1,459.46 unpaid, and that a mechanic's lien was filed against the property October 1, 1928, the foundation for the lien resting upon the allegation that the address of defendant, the Rialto Improvement Company, the owner of the premises, was unknown, and the petition further alleges that as a substitute for service plaintiff posted a copy of the affidavit on the premises and thereby claims a lien on the premises, now owned by Catherine McNeff.
There was no contract between Reimer and the Rialto Improvement Company, and an allegation of this nature we think would be necessary under Section 8310, General Code. The defendant, McNeff, filed a general denial.
From an examination of the record we find that the McNeffs purchased the property and were the owners thereof at the time it was sought to place a lien upon the premises, and there is no evidence that any notice as required by law of the filing of the lien or of the indebtedness upon which it was based was served upon the owners, the McNeffs, or their agents, and it is clear from the record that these owners were living on the premises, and certain parties were under their employ who might have been served, in order to perfect the lien, as agents of the owners, but the record is silent as to an observance of the statute in this regard.
The McNeffs were innocent purchasers of the property in question. It appears that they exercised due care in the purchase of the property, and no blame can attach to them because of the lack of necessary service.
Section 8315, General Code, provides for the service of a copy of the affidavit filed with the recorder upon the owner or his agents or lessees within thirty days, and there is no proof of conformity to this section, and there is also no evidence forming the basis for a justifiable excuse under the authorities which require that there must be a liberal interpretation of the law in favor of the party asserting the lien.
We think from a reading of the entire record that it is impossible to declare the lien valid, and, on the whole, we think the record favors a decree for defendants. The same decree may be entered herein as in the court below.
Decree for defendants.
VICKERY, P.J., and LEVINE, J., concur.