Francis, Hughes and Knight. The opinion of the court was delivered by Francis, J.A.D.
The problem presented here is whether a materialman's notice of intention was signed as required by the Mechanics Lien Act, N.J.S. 2 A:44-72, and if not, whether the plaintiff should have been permitted to amend it under N.J.S. 2 A:44-73.
Defendants Helen Davis and Michael Davis, husband and wife, and Michael Schack and Elizabeth Schack, husband and wife, are owners of certain premises at 25 Whitehead Avenue, South River, N.J. Some time before February 1, 1954 they entered into a contract with one Waldemar Hanselmann for the performance of certain construction work thereon. The contract was not filed as authorized by N.J.S. 2 A:44-75, and as the result the premises remained subject to a lien in favor of materialmen who complied with N.J.S. 2 A:44-71 and 72.
Under section 71 a materialman who expects to supply materials to the contractor, makes himself eligible for a lien if he files in the office of the proper county clerk a notice of intention to do so prior to the furnishing thereof. The notice is required by section 72 to be " signed by or on behalf of the person for whose benefit it is filed " and contain:
"a. The name of each person who, within 10 days prior to the filing, shall have been the owner of record of the estate in the land to which the lien is to attach;
b. A description of the land sufficient to identify it;
c. The name of the one for whom the labor is to be performed or to whom the materials are to be furnished; and
d. The full name and address of the one for whose benefit the notice is filed, and the name of anyone whose signature, when affixed to any instrument relating to such right of lien, shall be binding on the one for whose benefit the notice is filed." (Emphasis added.)
Prior to February 1, 1954 Hugh B. Sweeney, credit manager of the plaintiff J.D. Loizeaux Lumber Company, talked with the attorney for the owners about the financial capacity of the contractor in connection with the impending sale to him of certain materials. The attorney explained the amount
involved in the general contract, and in the course of the conversation plaintiff's agent said he would file a notice of intention. On February 1, before delivery of any materials, such a notice was filed.
Since the controversy centers around the notice, it seems advisable to set it forth in full:
"To the County Clerk of Middlesex County:
In compliance with the requirements of Title 2, Chapter 60, Article 10 of the Revised Statutes of 1937, and the supplements thereto and amendments thereof, this notice of an intention to perform labor or furnish materials or both is hereby submitted to you for filing and recording as required by the provisions of said act.
(a) That Helen Davis & Michael Davis her husband
Michael Schack & Elizabeth Schack hs. wf.
is the name of one who, within ten days prior to the filing of this notice, is or has been the owner of record of an estate in the lands hereinafter referred to, to which the lien under the aforesaid act may attach;
(b) That the lands to which any lien protected by this notice can or may attach are identified by the following description thereof, viz -- lying and being in
Boro of South River, Middlesex County, N.J.
Located at the northeast corner of Whitehead Ave and Augusta St. More fully described in deed book 1718 pgs 22 & 25 &c
(c) That any labor and/or materials to be performed or furnished in connection with any building operation upon the above described lands under the protection of this notice will be upon the order of and at the expense of
(d) That Fred D. Loizeaux or A. A. VanderVeer or Hugh B. Sweeny is the name of the person or persons whose signature shall be binding on the one for whose benefit this notice is filed when affixed to any instrument relating to any right of lien existing by virtue of the filing of this notice; and the full name and address of the one for whose benefit this notice is filed is as follows:
Name J.D. Loizeaux Lumber Company