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APEX Roofing Supply Co. v. Howell

Decided: February 11, 1960.

APEX ROOFING SUPPLY COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BENJAMIN HOWELL AND ESTHER HOWELL, DEFENDANTS-RESPONDENTS



Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[59 NJSuper Page 464] Plaintiff materialman instituted a mechanic's lien action in the county district court to recover a general judgment against Castle Construction Co., the building contractor, and a special judgment against the lands and buildings of defendant owners, Benjamin and Esther Howell. The trial court found that the written notice given the owners by plaintiff of its filing of notice of intention did not meet the requirement of N.J.S. 2 A:44-71, as amended. Accordingly, judgment was entered in favor of the owners, but against the construction company because it had filed no answer and been defaulted. Plaintiff appeals from that part of the judgment in favor of the owners. The

matter is before us on findings of fact and conclusions of law filed by the trial judge after learning that an appeal had been taken.

Benjamin Howell and Esther Howell, brother and sister, jointly owned the property where they made their home. They contracted in writing with Castle Construction Co. for certain repairs to their dwelling. The contract was never filed with the county clerk, as it could have been under the Mechanic's Lien Act, N.J.S. 2 A:44-75. Plaintiff furnished Castle with materials for the job totalling $629.07, the amount in suit. These were delivered between May 5 and 20, 1958, the first and largest delivery, on May 5, amounting to $610.40.

Plaintiff claimed that prior to furnishing the materials it filed a mechanic's notice of intention in the office of the county clerk on May 5, 1958, and that on May 9 it notified the Howells of this filing by registered mail, addressed to their home. For some unexplained reason the letter was returned, marked "unclaimed." Plaintiff then put it in an ordinary envelope and re-mailed it. The letter read:

"May 9, 1958

Registered Mail

Return Receipt Requested

Mr. & Mrs. Benjamin Howell

872 So. 16th St.

Newark, N.J.

Dear Mr. & Mrs. Howell:

Congratulations on your choice of Castle Construction Co. to apply Asbestos Siding to your home. As wholesale distributors of this material we know this valued ...


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