This is an appeal on questions of law by the Azola Equipment Rental Company and Maurice Kane, defendants, appellants herein, from a judgment and final order of the Court of Common Pleas of Franklin County, Ohio. The judgment was rendered in a case in which The A. Bentley Sons Company, plaintiff, appellee herein, brought suit against George J. Thormyer, Acting Director of Highways of the state of Ohio, J. R. Azola Company, Inc., and the two other defendants-appellants named, to recover the balance claimed to be due him upon a contract with the Department of Highways. The amount is $15,763.50.
The court below, in ruling upon the answer and cross-petition filed in the case, held that neither the Azola Equipment Rental Company nor Maurice Kane has a valid lien upon the funds due and payable to Bentley.
Most of the opinion of the court below was devoted to whether or not the papers filed by the Azola Equipment Rental *Page 385 Company with the highway department, identified as Exhibits A-3 and A-4, were sufficient to establish a lien upon the funds of Bentley in the hands of the highway director as provided in Section 1311.26 of the Revised Code.
In its opinion, the trial court wrote as follows:
"The two questions therefore presented to the court are: (1) Under the provisions of Ohio Revised Code, Section 1311.26, do the proffered exhibits establish a valid enforceable lien upon the funds withheld from plaintiff by the highway director, and (2) If not, is oral testimony admissible to correct the defects in the papers filed?
"Revised Code Section 1311.26 holds, in part, as follows:
"`Any subcontractor, materialman, laborer, or mechanic, who has performed labor or furnished material, fuel, or machinery, who is performing labor or furnishing material, fuel, or machinery, or is about to perform labor, or furnish material, fuel, or machinery, for the construction, alteration, removal, or repair of any property, appurtenance, or structure, described in Sections 1311.02 and 1311.03 of the Revised Code, or for the construction, improvement, or repair of any turnpike, road improvement, sewer, street or other public improvement, or public building provided for in a contract between the owner or any board, officer, or public authority and a principal contractor, and under a contract between such subcontractor, materialman, laborer, or mechanic and a principal contractor or subcontractor, at the time of beginning to perform such labor or the delivery of fuel or machinery, or at any time, not to exceedfour months from the performance of the labor or the delivery ofthe machinery, fuel, or material, may file with the owner,board, officer, or the authorized clerk or agent thereof, asworn and itemized statement of the amount and value of suchlabor performed, and to be performed, material, fuel, ormachinery furnished, containing a description of any promissorynotes that have been given by the principal contractor orsubcontractor on account of the labor, machinery, or material,or any part thereof, with all credits and setoffs thereon. * * *' [Emphasis added.]
"The defendant, Azola Equipment Rental Co., et al., filed with the highway department exhibit A-4 and exhibit A-3 in an apparent attempt by the defendants to comply with the statute *Page 386 in regard to filing a sworn and itemized statement of the amount and value, etc. The question then arises, first, do these statements comply with this statute and if not, can the oral testimony be admitted to show the defects and to correct them?
"Exhibit A-4 is a letter directed to the highway department signed by Maurice Kane for the Azola Equipment Rental Company. This letter is dated August 27, 1956. In writing at the bottom thereof, there is the following: Lucille E. Taylor, Wayne County, Commission expires 6-1960, 8-30-56. There is no imprint of any notary seal.
"Exhibit A-3 is entitled `Notice of lien' claim, etc., signed by Azola Equipment Rental Company, Maurice Kane, August 27, 1956, and in writing at the bottom is the following: 8-30-56 Lucille E. Taylor, Notary Public, Wayne County, Exp. 6-1960.
"Neither of these contains any of the essential elements to show that anybody has sworn to these statements. The mere appendage of Lucille E. Taylor's name adds nothing to the significance of the exhibits and therefore that particular addition becomes a mere nullity."
We believe that, to establish the lien claimed here, there must be not only a compliance with the statutory requirement of a sworn and itemized statement, but that the written evidence thereof must be filed in substantially complete form at the place and within the time required by statute. The words, "sworn and itemized," are of equal importance. The lien as provided is a drastic remedy, and is in addition to other remedies provided by law requiring that the statement be itemized and sworn to. The law clearly intended to prevent the abuse thereof by filing padded or inaccurate statements. That which is filed should be sufficiently explicit and complete not only to set forth the items but to show in clear and unmistakable language that their accuracy was vouched for under oath by the one filing the lien. Unless the evidence that the statement was sworn to is in form sufficient to warrant an action for perjury in a proper case, the form is simply insufficient.
We find ourselves in agreement with the rulings of the court below.
While there are four errors assigned by appellants, the opinion we have reached upon the two questions set forth by the *Page 387 trial court impels us to hold that none of the assignments of errors has merit, that all of them must be overruled and the judgment of the court below affirmed.
Judgment affirmed.
GRIFFITH, J., concurs.