LIEN OF MATERIALMAN.

Court of Appeals for Cuyahoga County.

#### Oscar T. Mayer et al, Plaintiffs, v. John Nemeth et al, Defendants.

Decided, June, 1919.

*Mechanic’s Liens*— Purpose *of the Provision of Section 8818 for Notice —Owner must Require Affidavits*— Sections *8812, 8318, 8314.*

One who has furnished material to a general contractor, for use in the construction of a building for the owner, and has filed a lien within the statutory time and served notice thereof upon the owner as *73provided in Section 8814, will not be deprived of bis lien because of failure to furnish the notice required by Section 8313.

*Buckley, Ilauxhurst, Saeger $ Jamison,*for plaintiff.

*B. C. and Geo. II. Schwan,*for defendants.

Dunlap, J.

Appeal from the Court of Common Pleas.

These eases are here on appeal from the court of common pleas. Inasmuch as the cases are submitted upon an agreed statement of fact, there is involved only the law applicable to those facts, and the whole matter at issue may be very simply stated in the form of a question, viz.: Will a materialman who has furnished materials to a general contractor for use in constructing a house for the owner, and who has filed a lien within the statutory time and duly served the notice of same upon the owner as provided in Section 8314, General Code, be deprived of the fruits of his efforts and his lien be held invalid because he has not furnished the notice provided for in Section 8313, General Code? We shall not enter into any long discussion of the mechanic’s lien law of Ohio in attempting to answer this question.

To us it seems that the question should be answered in the negative; that the notice provided for under Section 8313, General Code, is not intended as a prerequisite to the attaching of a lien; that it is intended only as an extra safeguard to the mateT rialman, sub-contractors and laborers to protect them from the consequences of being left off the contractor’s affidavit.

■ The provision of Section 8312, General Code, to the effect that any payments made by the owner to a general contractor before he had received affidavits from the general contractor, shall be made at his peril, admits of no interpretation which will excuse the owner from requiring such affidavits. Our holding here is in accord, we believe, with the holdings in similar cases both in this and other states having similar provisions in their mechanic’s lien laws, and the question here presented is hardly a debatable one since the dictum of this court through Meals, J., in the case of *Schraff*v. *Brennan,*No. 1362, decided February 14, 1917.

*74A holding, exactly similar to the one we are making here was made by the Supreme Court of Michigan in applying a section of its mechanic’s lien law practically identical with the one under consideration. It will be sufficient to simply refer to it. *Smalle*v. *Ashland Brown Stone Co.,*114 Mich., 186.

This decision was followed later in the case of *Blitz*v. *Field,*115 Mich., 675. We experience no difficulty in reaching a similar conclusion in applying our own law.

It follows that a decree may be drawn foreclosing the liens and granting the relief prayed for.

Washburn, J., and Vickery, J., concur.