Opinion
No. 4562.
Argued February 6, 1957.
Decided May 9, 1957.
1. In an action by a subcontractor to perfect a statutory mechanic's lien (RSA ch. 447) the requirement (s. 8) that the owner of the property be furnished an account of the labor and materials supplied "as often as once in thirty days" was held inapplicable where the subcontractor sought only to collect the money due him at the time notice was given the owner (ss. 5, 6) and no work or materials were furnished within the thirty days previous thereto, nor thereafter.
ACTION, by a subcontractor for a balance due from a general contractor, the issue being whether the subcontractor perfected his mechanic's lien against the property of the owner under RSA ch. 447. The `plaintiff commenced his action by attachment of the block of the owner, J. J. Newberry, located in Claremont, over a month after he had completed all the work included in the specifications of the writ. He had given no notice as provided by RSA 447:5 before performing the work that he would claim a lien, but after it was completed he sought and obtained permission, the principal contractor being in receivership, to bring suit to secure his claim. A mechanic's lien attachment was made by a writ to which a detailed specification was attached showing a balance due the plaintiff of $2,407.50. There was no denial that this balance was due. The Court found that the sending of copies of the petition for permission to bring suit to the owner and the bonding company was sufficient "notice in writing to the owner" that the plaintiff was claiming a lien under RSA 447:5 and 6. However, the action was dismissed subject to exception on the grounds that the plaintiff had failed to comply with RSA 447:8 which requires that the subcontractor give the owner "as often as once in thirty days . . . an account in writing of the labor performed or materials furnished during the thirty days . . . . "Further facts appear in the opinion. Transferred by Wescott, J.
William G. McCarthy and McLane, Carleton, Graf, Greene Brown (Mr. Brown orally), for the plaintiff.
Robert E. Earley for the defendant, furnished no brief.
The issue presented is whether the plaintiff's failure to furnish the owner an account of the labor or materials supplied "as often as once in thirty days" as required by RSA 447:8 bars his recovery. It appears that no work was done nor materials furnished within the thirty days previous to giving the notice to the owner under RSA 447:5 and 6, nor thereafter. The plaintiff sought only to collect the money due him at the time he gave the notice. RSA 447:6 specifies that upon giving notice as here after the work is done and materials supplied the "lien shall be valid to the extent of the amount then due . . . to the contractor." (Emphasis supplied). The account required by RSA 447:8 would have been an empty formality here because no work had been done nor materials furnished within the thirty days previous to the giving of notice or thereafter. It is too well established to require citation that the law does not require a useless act. No prejudice has resulted from the failure to comply with RSA 447:8 as the parties were given all the information essential to the protection of their rights. In these circumstances, it appears that RSA 447:8 is inapplicable and the plaintiff having complied with all other essential provisions of RSA ch. 447 relative to notice has preserved the lien which his undertaking created and which is valid to the extent of the amount due the defendant at the time of the plaintiff's notice. Boulia-Gorrell Lumber Co. v. Company, 84 N.H. 174, 176. The order is
Judgment for the plaintiff.
WHEELER, J., took no part in the decision; the others concurred.