Wescott v. Bunker

Whitehouse, J. The defendant Bunker made a contract to build the "Whiting cottage” and stable appurtenant at Hull’s Cove, in Eden, for $15,000 and orally sublet to the plaintiff the stone work and masonry for the sum of $4550. The plaintiff furnished labor and materials to complete his original undertaking, and also performed extra work at the request of the owner of the premises of the value of $121.50. The payments ■credited amounted to $4238.68, leaving a balance duo of $432.82, and interest. The case shows that, under the instructions of the court, there was a finding by the jury that the plaintiff had a lien to secure payment of this balance of $466.57, ■on the buildings described for the labor and materials thus ■furnished in their erection. But it was contended in behalf of the owner, who appeared in defense, that this lien was dissolved by reason of the plaintiff’s failure to observe the requirements — 503 — of the statute in his proceedings to preserve and enforce his lien, and hence that no valid judgment can be rendered against the real estate. The court ruled otherwise, and the defendant took exceptions. It is provided by section 30, ch. 91, E. S., that "whoever performs labor or furnishes labor or materials in erecting, altering or repairing a house, building or appurtenances by virtue of a contract with or by consent of the owner, has a lien thereon, and on the land on which it stands,” &c. By section 32 of the same chapter: "The lien mentioned in the preceding sections shall be dissolved unless the claimant within thirty days after he ceases to labor or furnish materials as aforesaid, files in the office of the clerk of the town in which such building is situated, a true statement of the amount due him with all just credits given,” etc. It is further provided by section 33, that "no inaccuracy in such statement relating to said property, if the same can be reasonably recognized, or in stating the amount due for labor or materials, invalidates the proceedings unless it appears that the person making it wilfully claims more than his due.” Seeking to comply with these provisions the plaintiff duly filed the following statement of his account, alleging in the language of the statute that it was a "true statement of the amount due with all just credits given:” "To labor and materials furnished upon "Whiting Cottage from July 1, 1887, to and including October 10, 1888, $4550 00 To extra plastering, 6 50 To putting rollway to cellar, 50 00 To stone work under tower windows 65 00 $4671 50 Credit by order, $1150 00 Credit by cash, 3088 68 $4238 68 Balance due, $432 82” — 504 — The contract was an entirety. The plaintiff was to perform certain work for a round sum. Iiis statement of the amount due him does not comprise a detailed and itemized account of the labor performed and materials furnished, but gives only the aggregate price of the undertaking as stipulated in the contract. The plaintiff was a sub-contractor. His contract was not made with the owners of the real estate; and It is contended in limine, that in case of a sub-contractor, such a general statement of the amount of Ms claim is not sufficient to preserve the lien, but that a particular account of the transactions which are the foundation of it should be required. It might be sufficient to observe upon this, point that the legislature has not seen fit to require such a specification of items. The section of the statute quoted (Sec. 32,) is applicable to all claimants. It makes no distinction between a contractor and a sub-contractor. It is proper to be reminded that the office of the court is jus dicere, not jus dare; and it might well be deemed an assumption of legislative powers to impose on the sub-contractor a burden not required by the express terms of the statute. But numerous adjudications may be found in other jurisdictions based upon statutes having a scope and purpose closely resembling our own, making a distinction between the case of an original contractor and a sub-contractor with respect to the degree of particularity required in filing the lien account, and holding that a sub-contractor is bound to set out the items of his claim for the information and protection of the owner and of purchasers and others who may become interested in the property subjected to the lien. In Maryland, for instance, where the first attempt appears to have been made in this country to create a mechanic’s lien on buildings it was held, in case of a sub-contractor, that the notice or claim of lien should be specific as to the labor performed and materials furnished, to prevent fraud and collusion between contractor and sub-contractor and to enable the owner to ascertain the correctness and reasonableness of the demand. Carson v. White, 6 Grill, 17. So also in Pennsylvania, the second state to enact — 505 — a lien law in favor of mechanics, when the claim filed under the act of 1845, was based on a special contract with the owner, the contractor was not required to set out the nature or kind of work done or the kind or amount of materials furnished, as provided in other cases under the act of 1836. But in Lee v. Burke, 66 Penn. 336, Sharswood, J., says : "The act of 1845, was intended to prov ide for the case of a special contract made by a mechanic, with the owner for the erection of a building. The reason for requiring these particulars to be filed does not exist in the case of a special contract for a round sum of money. Censante ratione cessat et ipsa lex. But it is entirely different when the contract of the mechanic, though it may be for a round sum is not with the owner, but with a contractor under him. The contractor cannot bind the building by any special contract for more than the materials furnished and the work done at their fair market price.” And in Cray v. Dick, 97 Penn. 142, it was held that the statute of 1849, which allows the filing of a statement of the aggregate price of the work and materials where there is a contract for a stipulated sum, applies only to the original contractor notwithstanding- its general terms. The Court says : "The sub-contractor is entitled to no more than the fair market value of the work done and the materials furnished on the credit of the building, and hence the owner should be informed by the claim filed as to the particulars of the claim that he may make the necessary inquiries to satisfy himself as to its justice as a lien on his property. The agreement between the contractor and sub-contractor is not the measure of the owner’s responsibility; his building is bound for no more than the value of the work done and the materials furnished by the sub-contractor.” See also Rude v. Mitchell, 97 Mo. 365, and notes in American Law Review, Vol. 24, No. 5, page 857; Phillips on Mechanic’s Liens, sections 349-352; 2 Jones on Liens, sections 416-467. The several kinds of privilegium recognized and allowed by the provisions of the civil law evidently formed the ground-work of the more complete and beneficent systems which have gradually been adopted in the American States. See Domat’s Civil Law, Strahan, sections 1742, 1744, and 1745. The — 506 — mechanic’s lien on real property was entirely unknown to the English law. It is wholly a creature of statutes in derogation of the common law. But whether a given enactment shall receive a liberal construction as a remedial act or a strict interpretation, as one conferring a special privilege upon a favored class, must be determined by a consideration of the provisions and operations of the act in question. The statute invoked by the plaintiff is a just and reasonable one. It seems designed to protect the rights of the land-owner as well as to afford security for the contractor and laborer. It must appear that the labor and materials were furnished either by virtue of a contract with or by consent of the owner of the property affected. If not furnished by a contract with the owner he may prevent the lien by giving written notice that he will not be responsible. These provisions are distinguishable from those in the other States named. Here, the sub-contractor and original contractor occupy essentially the same situation with respect to the owner, and the authorities are substantially uniform in holding that, in case of a contract with the owner to perform an entire contract for a specified sum, it is sufficient to file a statement of the amount due unless a specification of items is expressly required by statute. In such a case every source of information is equally open to contractor and owner, and it would ordinarily be utterly impracticable for a contractor who may be engaged in erecting several buildings at the same time to make an accurate apportionment of the contract price for each building between labor and materials, or between the different classes of labor and different kinds of materials. And it would ordinarily serve no useful purpose. Under our statute there is nothing in the situation of a sub-contractor requiringthe application of a different rule. In Ricker v. Joy, 72 Maine, 106, the plaintiff filed a statement that there was one hundred and nineteen dollars and forty cents due him from the defendant for labor and materials which went into a house owned by a third person. This was held sufficient, and although the question of the relative obligations of the original contractor and sub-contractor to the owner was not discussed, it may be assumed that it was not overlooked by the court. The statute requires the claimant to file a true state — 507 — incut of the amount due him with all just credits given. The true amount and not the items that make it up is the material thing to be done. Sexton v. Weaver, 141 Mass. 274. The plaintiff’s statement of the amount due him filed in the office of the town clerk of Eden, October 5, 1888, is in this respect a sufficient compliance with section 32 of chapter 91, R. S. The provisions of section 59, chapter 81, E. S., making certain specifications necessary to create a lien by attachment are entirely distinct from the requirements of the lien chapter respecting the statement of account necessary to preserve a lien already acquired. The operation of the one is radically different from that of the other. The underlying principle of the mechanic’s lien is that of consent or contract. The process of acquiring a lien by attachment is wholly in invitum. They are separate and independent methods of procedure. But it is further objected that, in the descriptive part of the plaintiff’s certificate, there is no allegation of materials furnished ; that the amount is alleged to be due solely for labor done. But the four items in the formal statement of the account, which was made and recorded as a part of the certificate, is for labor and materials furnished; and the account annexed to the writ is identical with that recorded. All parts of the certificate being considered together the statement is neither indefinite nor its meaning obscure. Trilling discrepancies between the different parts of the certificate are not to be regarded when the import of die whole is plain and obvious. It was not intended by the legislature that these statements should be strangled by technicalities. Section 33, oh. 91, E. S., supra; Durling v. Gould and Manor Inn, ante, p. 134. When the labor and materials are furnished for several buildings on the same lot and under an entire contract for an entire price, the labor and materials furnished for each building create a lien upon the "whole estate and, therefore, upon all the other buildings. Wall v. Robinson, 115 Mass. 429; Worthley v. Emerson, 116 Mass. 374; Batchelder v. Rand, 117 Mass. 176. Exceptions overruled. Peters, C. J., Libbey, Emery, Foster and Haskell, JJ., concurred.