Citations
- 39 Ohio App. 471
Full opinion text
Hamilton, J.
This was an action for the marshaling and foreclosure of mechanics’ liens. Defendant Mary Bañas was the owner of the property. The liens arose out of the construction of a house and the furnishing of labor and material.
There were several liens set up in the cross-petition, among them the lien of Ernest W. Sehlegel, doing business as the Yale Booting Company. The liens were finally adjudicated in the court of common pleas, and no exception was taken thereto except to the lien of Ernest W. Sehlegel, doing business as the Yale Booting Company, which lien the court of common pleas held valid. Mary Bañas appeals from that part of the judgment holding this lien valid.
The amount of the judgment lien was $310, and interest.
Schlegel was a subcontractor, and had the contract under the general contractor for furnishing the labor and material for the construction of an asphalt shingle roof and chimney flashing on the dwelling house.
The only question presented here is as to the sufficiency of the affidavit furnished by Schlegel under Section 8312, General Code, which provides, among other things, that: “The original contractor shall also deliver to such owner, part owner, lessee, or mortgagee, similar sworn statements from each subcontractor, accompanied by like certificates from every person furnishing machinery, material or fuel to such subcontractor. The owner, part owner, or lessee, or his agent, shall retain out of any money then due, or to become due to the principal contractor, an amount sufficient to pay all demands that are due or to become due to such subcontractors # # # >>
Appellant argues that appellee’s lien is invalid for the reason that this affidavit was sworn to by the attorney for Schlegel doing business as Yale Roofing Company, when the statute, above quoted, requires that the affidavit be made personally by the subcontractor.
The sworn statement was made by Frank A. Green, attorney for Ernest W. Schlegel, doing business as Yale Roofing Company.
The question then is: Is the delivery to the owner through the original contractor, from the subcontractor, of a statement sworn to by the subcontractor’s attorney, a sufficient compliance with the statute ?
The statute further provides, among other things, that: “The subcontractor shall have no right of action or lien against the owner * * * until he shall have furnished such statements # *
The law is that the statute shall be construed liberally to secure the beneficial results, intents, and purposes thereof. Section 8323-8, General Code. The statute does not in turn provide who shall make the sworn statement. It provides the original contractor shall deliver the sworn statement for each subcontractor to the owner. Such a sworn statement was furnished Mrs. Bañas, and there is no claim that any injury or loss resulted to the owner by reason of the sworn statement having been executed by Schlegel’s attorney.
It is argued that under Section 8314 the affidavit for the filing of the lien in the recorder’s office, in order to perfect the lien, may be made by a person, his agent or attorney, that this indicates the Legislature intended that the sworn statement provided for in Section 8312, General Code, should be sworn to by the subcontractor and no other person, since agent or attorney is not mentioned. This interpretation would present the situation that if during construction of the work, the subcontractor should die, the lien never could be perfected because he personally could not make the qualifying sworn statement to be furnished the owner.
Counsel admits that there is no ruling on the question in Ohio, and that the proposition is one of first impression.
It is the general rule that a person may act through a duly authorized agent or attorney in all business matters except one involving personal service; that Green was the duly authorized attorney is not disputed.
The language of the statute is that the subcontractor shall furnish sworn statements. It does not say “sworn to by the subcontractor,” and, even if it did, he certainly could act through a duly authorized agent or attorney. It would not require even a liberal interpretation of these statutes to hold the sworn statement sufficient to comply with the portion of the statute which provides that he ‘ ‘ shall deliver a sworn statement.” This was done in this case, although the, sworn statement was executed through an attorney.
We find no merit in the point raised, and a decree sustaining the lien may be entered.
Decree accordingly.
Ross and Cushing, JJ., concur.
Hamilton, Ross and Cushing, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.