AS TO THE VALIDITY OF MECHANIC’S LIENS FILED AFTER TIME.

Court of Appeals for Hamilton County.

#### Agnes Park v. The Williamson Heater Co. et al.*

Decided, May 20, 1918.

*Mechanic’s Liens*— Lien *Holders Protected Where Failure to Follow the Strict Letter of the Law*Was *Due to Deception Practiced by the Owner*— Time *for Filing Liens Where Work is Left Incomplete.*

1. The validity of a mechanic’s lien is not affected by failure of the contractor or material-man to follow the strict letter of the statute in the matter of furnishing to the owner or his agent a sworn and itemized statement as required by Section 1283, G. C., where such failure was due to deception practiced by the owner. In such a case the sending of a copy of the lien placed on record, addressed to the name used by the owner in making the contract, is a sufficient compliance with the statute and the lien so perfected will be held good.

2. Where heating apparatus was placed in a building and nearly all of the labor performed in June, but the registers were not installed or connections made until November, the filing of a mechanic’s lien within sixty days of completion of the work was within the time prescribed by the statute.

3. But where a plumber does a part of the work on a building and a year later files a lien, the work in the meantime having been completed by another plumber at the instance • of the owner, the lien is not filed within time and is void.

4. The lien of a painter, who left the job unfinished and filed a lien more than sixty days after the furnishing of the last material and labor, is also void for failure to file within the prescribed time.

*Jas. B. Jordan*and *Hicks & Hicks,*for Agnes Park.

*H. J. Buntin,*for Williamson Pleater Co.

*Bates & Bates,*for Nitzschman & David.

*G. S. Burdsall,*for Gilbert Kerley and Max Liederman.

*

 Affirming in part *Park*v. *Williamson Heater Co. et al,*20 N.P.(N.S.), 151.

*254By the Court.

This action comes into this court on appeal .from the Court of Common Pleas of Hamilton County.

The original action was brought by Agnes Park against the Williamson Heater Co., Harry Nitzschman and Edward David, doing business under the firm name of Nitzschman & David, Gilbert Kerley and Max Liederman. Max Liederman was the principal contractor in the construction of a dwelling-house on Hawthorne avenue, in Cincinnati, Ohio; and the three sub-contractors, the Williamson Heater Co., Nitzschman & David and Gilbert Kerley, each claimed a mechanic’s lien of record against said premises.

Plaintiff’s action is one to quiet the title of the premises against these several liens.

Defendants by way of several cross-petitions seek to foreclose their liens.

Plaintiff claims that these liens of defendants are void for the reason that they were not filed within sixty days from the last of the material and labor furnished as required by G. C., 8314, and further that neither the head contractor nor the subcontractors made out and gave to the owner or her agent a sworn and itemized statement, as required by 'Section 1283 of the mechanic’s lien law. Plaintiff admits the receipt of notices of the filing of the several liens.

Without entering into a general discussion of the lien laws applicable to the case we shall content ourselves by saying that any defect on the part of the defendants in following the letter of the law and in furnishing sworn and itemized statements was due to the deception practiced by the plaintiff, and the service of the copj1' of the lien filed must be held to be a substantial compliance with this provision of the statute.

We are of the opinion that tire lien filed by the defendant the Williamson Heater Company was filed within sixty days from the furnishing of the last of the material and labor. The evidence shows that while all of the material was furnished and nearly all of the work and labor performed in the -month *255of June, 1914, some work was done by way of connecting up of the furnaces and installation of the registers by the heating company on the 28th day of November, 1914, and on December 5, 1914, the said Williamson Heater Company duly placed its mechanic’s lien on record in Hamilton county, Ohio, and on the same date a true copy thereof with the notice of the furnishing of the heating apparatus and cost thereof was addressed to "Anna Mey,” the name under which plaintiff had contracted for the construction of the house. This was in compliance with the statute and this lien must be found good.

The lien claimed by the defendants Nitzschm'an & David is based on their claim for plumbing. The evidence discloses that the last work performed by these defendants on the plumbing was in the fall of 1914; that there was certain work to be done on the plumbing, but that the same was never performed by the said defendants, but was procured by plaintiff or' her grantee to be done by other parties; that these defendants claimed they did not discover that some one else had done the work until April 18th, 1917. The mechanic’s lien claimed by these parties was placed upon record the 22d day of October, 1915. It is therefore clear that the lien having been placed on the property more than one year after the last work had been performed and material furnished, it was filed too late. Neither can they successfully claim a lien by reason of the unperformed part of the work, as there is no claim that a lien was filed after the discovery that the work had been done by others, and the lien is claimed only on account of labor and material furnished prior thereto. We must therefore hold this lien to be void and of no effect.

The same facts appear from the testimony of defendant Gilbert Kerley with reference to his claim for painting, 'except as to some little difference in the dates as to when the last work was done and the filing of the lien. The filing of Kerley’s lien, as shown by the evidence, was more than sixty days subsequent to the furnishing of any material or labor, and said defendant admits that the unfinished part of his contract, if any, has not yet been completed, in so far as he knows. It is there*256fore clear that no lien can he predicated upon the unfinished work.

We therefore hold that plaintiff is entitled to the relief prayed for, upon the payment of the claim of the Williamson Heater Company, and upon the failure to pay this money a decree in foreclosure and sale of the premises may be had to satisfy such claim; that the liens claimed -by the defendants Nitzsehman & David and Gilbert Eerley are void and of no effect, and the title may be quieted as against these two alleged liens.

Jones, P. J., and Hamilton, J., concur; Wilson, J., not participating.