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APEX Roofing Supply Co. v. Miller

Decided: April 29, 1963.

APEX ROOFING SUPPLY CO., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
JERVIS MILLER, TRADING AS MODERN HOME INDUSTRIES, DEFENDANT, AND FRANK SUMMERFIELD AND DOLLIE SUMMERFIELD, DEFENDANTS-APPELLANTS



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

Conford

This is a mechanic's lien action in which defendants Frank and Dollie Summerfield, husband and wife, appeal from a judgment entered in the Union County District Court in the sum of $548.40 plus costs in favor of the plaintiff and specially against lands and building owned by defendants situate at 330 Tower Street, Union, New Jersey. The action was instituted against the Summerfields by the plaintiff materialman, Apex Roofing Supply Co., to recover a special judgment, as well as against Modern Home Industries, Inc., the building contractor, for general judgment. The defendant builder filed no answer, and judgment by default was entered against it. It is not a party to this appeal.

The defendants Summerfield owned the building and property subject to the judgment as tenants by the entirety. Modern Home Industries, Inc. was engaged by the Summerfields to do repair work on the property. No contract evidencing this understanding was filed under N.J.S. 2A:44-75.

On June 9, 1961 plaintiff furnished the contractor with materials for the job at a price of $190.50. Delivery of $263.50 worth of goods was made on June 12, 1961 at "around" 10:00 A.M. At 10:23 A.M. on June 12 a mechanic's notice of intention, filed by plaintiff pursuant to N.J.S. 2A:44-71, was stamped "filed" in the Union County Clerk's Office. Other materials sold for $285.00 were delivered to the contractor by plaintiff on June 12, 1961, after 10:23 A.M. (there were other deliveries on subsequent dates not here involved).

Pursuant to N.J.S. 2A:44-91, plaintiff filed a lien claim within four months after the date of delivery of the last

materials furnished. That claim, and the summons and complaint in the instant action, which latter were filed on October 16, 1961, named "Jervis Miller, doing business as Modern Home Industries," as the builder. (The mechanic's notice of intention simply designated "Modern Home Industries.") The answer filed by defendants Summerfield on November 15, 1961 specifically set forth that the builder with whom they dealt was not Jervis Miller, but rather Modern Home Industries, Inc., a corporation. In March 1962 plaintiff sought, and was granted, over objection of the Summerfields, leave to amend the notice of intention, the lien claim, and the summons and complaint to show the corporation as the builder or defendant in place of the individual, Miller.

At the trial plaintiff voluntarily abandoned its claim as to the June 9 delivery, that concededly having been made before the filing of the notice of intention, and thereby not being entitled to a lien under N.J.S. 2A:44-71. The defendants urged that plaintiff's entire claim was invalid on the ground that the statutory requirement for giving them notice of the filing of the notice of intention was not met in that there was a mailing of only a single notice to both defendants jointly; and that amendment of the lien claim and summons and complaint more than four months after the last deliveries by plaintiff was improper. Defendants claimed also that, in any event, the $263.50 item delivered on June 12 was not covered by a lien since the delivery was prior to the actual time of filing of the notice of intention. The trial court rejected all of the defendants' contentions, and this appeal followed. However, plaintiff has now agreed the $263.50 item was in fact delivered before the filing of the notice of intention and has abandoned its claim to that much of the judgment below.

I.

N.J.S. 2A:44-71 provides that

"[n]otice, in writing, of the filing of any such notice of intention shall be given within 5 days of such filing to the owner of the premises, of

the land described therein, personally or by registered mail, to the last known address, and unless such notice to the said owner be so given, the filing of the said notice ...


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