filed the following dissenting opinion.
The majority opinion of this Court, reversing the decree of •the chancellor, is based on the theory that a mechanics’ lien is valid against houses in a development for concrete delivered to the site of the housing development despite a conclusive showing that none of the concrete for which the liens were claimed was used in the particular houses against which the liens are sought to be enforced.
The chancellor denied the decree sought by Clark Certified Concrete Co., Inc., (Clark or the materialman) for the sale, under the Mechanics’ Lien Law, of the two houses known as 1243 and 1245 Neighbors Avenue, in Philadelphia Heights, formerly used as sample houses, but now owned by Walter W. Lindberg, et ux., and Rosalie Hokemeyer, respectively. In 1951, Brook Homes, Inc., (Brook or the developer) acquired ninety-two lots in the Philadelphia Heights section of Baltimore County which it proceeded to develop by building houses. Construction began in January of 1951 and continued until a receiver was appointed for Brook in August of 1953. In *583June of 1953 the houses referred to were sold by Brook to the ¡present owners. Pursuant to an informal understanding, Clark had delivered all the concrete needed by Brook in the development. On one hundred and thirty-four different days in the period between February of 1951 and April of 1953, over eighteen hundred cubic yards of concrete were sold and delivered on open account to the development site. The concrete delivered through July of 1952 had been paid for, but the balance due for concrete delivered between August of 1952 and April of 1953 was not paid. The mechanics’ lien was filed in August of 1953.
It was stipulated that the houses against which the liens were filed “were substantially complete and had been so for approximately one year prior to * * * [July of 1953], and had been used as sample houses by the builder.” The president of Brook testified that the houses were finished in 1951, and that the concrete used in the alley and sidewalks for those houses had been poured “sometime before July of 1952.” There is no dispute, therefore, that the concrete used in these two houses was included in the concrete which had been paid for. There is also no dispute that the concrete which has not been paid for and on which the lien claimed was based was delivered after August of 1952, that is, after all of the concrete work for or about the two houses involved had been completed.
I agree with the majority that the law in Maryland does not require a mechanics’ lien claimant to prove in which of several houses in a development project his materials were used. All that he is required to show is that the materials were delivered to the site of construction. In fact, the materialman does not even have to show that “the materials were actually used on the project, if they were purchased for and delivered to the site of the work.” District Heights Apts. v. Noland Co., 202 Md. 43, 95 A. 2d 90 (1953). But, I am convinced that all this rule does — even though it is far-reaching in its scope and effect — is to raise a presumption in favor of the materialman to the effect that his materials w’ere actually used on the project. It does not, however, imply that the owner of the houses is precluded from rebutting *584such use if he can. Of course, failure to use the materials for the purpose delivered, or the waste or destruction thereof, or diversion to another site, would not rebut the presumption.
In Maryland Brick Co. v. Spilman, 76 Md. 337, 25 A. 297 (1892), a materialman, having furnished the bricks for a housing development, filed its lien on all the houses constructed. Subsequently the lien on some of the houses was released. Thereafter, when the brick company sought to enforce its lien against the remaining houses, the owner claimed that the materialman had not proved that its bricks were used in the remaining houses. This Court, quite properly, found in favor of the brick company, stating at p. 343:
“From the very nature of this contract, it could, in no event, become important, how many bricks went into one building or whether more went into one than another. Nor was it requisite, to entitle the appellant to maintain its lien, that it should establish the fact that the bricks were actually used in the construction of the buildings or not, provided it was shown that under its contract with Spilman, it had delivered the bricks to be used in the erection of said buildings.”
However, this statement only means that the attempt of the owner to shift the burden of proof to the materialman was improper under the circumstances in that case. That this interpretation is correct is demonstrated by the additional statement in the opinion, at p. 344:
“Suppose any such burden was imposed upon the appellant in furnishing the bricks for the buildings in question, how could it have discharged the obligation? It only contracted to furnish and deliver the bricks for the forty-seven buildings, and then its power to fulfill the contract was at an end. It had no right to direct how the bricks should be used, and it could have no possible means of ascertaining or of showing into what building or buildings the bricks had gone, or whether they had been used at all in *585any of the buildings. It fulfilled its contract when it delivered the bricks. If such a burden, under the contract, rested anywhere, it was with the appellee, Spilman, who had the means at his command of showing the exact truth in respect to the use to which the bricks had been put, but it was wholly immaterial to have required any such proof of the appellant, * * *.”
But what is more important, the Court also said, at p. 343:
“The facts, however, of each particular case must determine the propriety of the application of the principles of law, which ought to govern in such case, and in neither of the cases just quoted [Wilson v. Wilson, 51 Md. 159, and Nickel v. Blanch, 67 Md. 456] are the facts the same or similar to those to be found in the record of this appeal.”
The Wilson and Nickel cases dealt principally with the effect of a release. It is also significant, I think, that Judge Soper, in the course of his opinion in Humphrey v. Harrison Bros., infra, saw fit to quote verbatim the citation last referred to from the Spilman case.
In the instant case the owners have shown “the exact truth in respect to the use” to which the concrete was put. None of it went into the houses involved for they had been completed more than a year before the concrete was delivered for which the lien was claimed. And it is not disputed that the concrete which was used for or about the houses in question had been paid for before the lien was filed.
In Humphrey v. Harrison Bros., 196 F. 2d 630 (4th Cir. 1952), which had been removed to the District Court from the State court for trial, the materialman had supplied plumbing materials for a large development, but had filed its lien against only part of the houses therein. The owner contended that none of the materials specified in the lien, except a very small amount, were installed in the houses against which the Hen was asserted, but had been installed in other houses in the development against which the claim had not been filed, *586and also claimed that he had paid the contractor for all the materials supplied and work done in the unencumbered houses. In applying the Maryland law, Judge Soper said: “The more important question * * * is whether the lien is invalid because the materials on which it is based were not installed in the houses against which it is asserted, but in other houses in the project,” and in the course of his opinion he subsequently stated:
“[I]t is not essential to the validity of the lien claim that the furnisher show in what houses specific materials were used, or indeed that the materials were actually used upon the project if they were purchased for and delivered to the site of the work.” (Emphasis added.)
This statement refers only to the minimal evidentiary burden that is placed on the materialman. The construction of the .sentence shows that Judge Soper was not confronted with the fact that the owner had conclusively rebutted the presumption in the materialman’s favor — that some of the materials were used in every house — arising from the delivery of the materials to the development site. The import of the first part of the italicized sentence — “it is not essential * * * that the furnisher show”- — is that it is not incumbent on the materialman to show that his materials were used in any particular house. In other words, the case dealt with the kind of evidence that need not be produced by the material-man; it did not deal with the kind of evidence that might be produced by the owner. In the Humphrey case there were no facts, as there are in the instant case, which conclusively rehut the use of any of the materials on which the lien was predicated in the ^houses against which the lien was filed. While it is true that the owner contended that none of the materials — “except a very small amount” — were used in the houses against which the lien was filed, and that all of the materials furnished and work done in those houses had been paid for, there is no indication in the opinion that he produced sufficient factual proof to convince the Circuit Court of Appeals that he had rebutted the presumption in favor of *587the materialman. Moreover, since he quoted it (see p. 585), Judge Soper was well aware of the statement made in the Spilman case, supra, with regard to the facts which ought to govern each particular case.
All that the Spilman and Humphrey cases, both supra, really decide is that the burden of proof cannot be placed upon the materialman. There are other Maryland cases which hold to the same effect, but in no case heretofore decided by this Court has the owner produced evidence, as in the present case, where it was proved that none of the materials for which the lien was claimed had gone into the houses involved because such houses had been completed more than a year before the materials were delivered for which the lien was claimed, and where it was admitted that the materials which were used for or about the houses in question had been paid for before the lien was filed.
While the Florida statute is somewhat different from the law in this State, the Supreme Court of Florida, in Tremont Co. v. Paasche, 81 So. 2d 489 (Fla. 1955), rejected a claim strikingly similar to that made by the materialman in the instant case with the following remark:
“The lien holders have cross-appealed, it being their contention that they are entitled to liens against all the premises including the original or model cottage, all of which was completed and paid for before the commencement of the construction of the remaining nine cabins, so that the lienors extended no credit on the strength or basis of the model cabin, and we likewise see no error in the decree of the trial court excluding or excepting this portion of the lot from the effect of the liens.”
In District Heights Apts. v. Noland Co., supra, the issue was simply whether the holders of a mechanics’ lien had produced sufficient evidence to prove delivery of the materials. We found that delivery had been shown, and that the claimants did not have to show that the particular materials were used in particular buildings. But the fact that a claimant does not have to produce proof of specific use in no way *588implies that the owner may not rebut such use. We implied this approach to the problem of rebutting a presumption when we said in the Noland case, at p. 49:
“When materials are purchased for use in a proposed building, and they are furnished in pursuance of the contract, and there is no testimony tending to raise a suspicion that the materials were not used in the building, it is reasonable to conclude that the materials did in fact go into the building, especially where it is shown that some of the materials have been used in the construction.” (Emphasis added.)
There is more than a suspicion in the present case for it is conceded that none of the materials for which the lien was-filed were used in the houses in question.
I believe that in a case such as this, where it is unreasonable to require the materialman to produce evidence which, is peculiarly within the knowledge of the owner of the development or of a home owner, as the case may be, and where the lien claimant must prove only the delivery of the-materials to the development site, the burden of proof rule should be so extended as to permit the owner to produce, if he can, clear and convincing relevant evidence negativing-the presumption that the materials so delivered were used in every house in the development. Query: What, for instance, should be the finding if there is clear and convincing-proof that a claim for bricks delivered to a development site was filed against a house built entirely of stone?
I further believe that it is unfair, as well as unnecessary, under the circumstances in this case, to extend the previous rulings of this Court to what is likely to be an irremediable injury to the present owners of the houses in question. In my opinion, the applicable law does not need to be amended in order to protect an owner under the circumstances here present. All that is needed is for us to so interpret the existing law as to give to it the reasonable meaning we have so often implied we would bestow if and when a set of circumstances were shown to exist which warranted a finding that the presumption in favor of a materialman had in fact *589been rebutted. And it does not seem to me that it should make any difference whether the house involved is still owned by the developer or has been sold to another owner.
For the reasons stated, I am convinced that under the circumstances in this case, the owners have conclusively rebutted the presumption in favor of the materialman, and that the bills of complaint should be affirmed instead of reversed.