Voigtmann v. Wilmington Trust Building Corp.

Citations

• 23 Del. 265
• 7 Penne. 265
• 78 A. 920
• 1908 Del. LEXIS 17

Syllabus

<p>Mechanics’ Lien—Pleading—Set-off—Recoupment—Contract— Forfeiture—Statement of Claim—When to be Filed— Statute—Termination of Contract by Defendant—Effect of—On Credit of House, Building or Structure—Material Requirement—Must be Proved.</p> <p>1. At common law, in proceedings upon scire facias, there was no such thing known as set-off. The subjects to which the writ applied were matters of record,—judgments or recognizances. But in this and many-other States it has been made applicable to mechanics’ liens, and set-off is a good and appropriate plea in such an action. It is, however demurrable if not drawn out.</p> <p>2. A plea of set-off is bad if it is not for a sum liquidated, or which can be ascertained by calculation, as our Statute requires.</p> <p>3. It is our settled practice not to plead, but to give verdict of the plea of recoupment.</p> <p>4. Mechanics’ lien is not an action on contract. It is more in the nature of an action of assumpsit for the price and value of work, labor and materials furnished by the claimants. If a portion of the materials was not of the quality and kind specified by the contract, but they were received and used, the claimant may recover what they were worth.</p> <p>5 Courts do not encourage forfeitures. The right to declare a forfeiture of the contract does not carry with it the right to refuse payment for labor and materials not in conformity with the contract, which were received and used and were of benefit to the defendant.</p> <p>6. A notice of recoupment is sufficient if it informs the claimant what is relied on by way of recoupment, and shows that these matters relate to or grow out of the subject of the action.</p> <p>7. In an action of mechanics’ lien, if it appears from the testimony that the statement of the plaintiff’s claim was not filed within the time required by the statute, a non-suit will be granted. The plaintiff will not be relieved of the requirement by the act of the defendant which terminated the contract b