Shaw v. Tompson

Morton, J. The bill of exceptions shows that when these cases were reached in their order for trial in the superior court the respondents were defaulted and damages assessed by the court. Afterwards the respondents moved that the defaults be taken off and the cases restored to the trial list. The court refused these motions, but opened the cases for the reassessment of damages merely, stating to the parties that no question as to the validity of the liens would be opened, but the amounts due would be only considered. At the trial before the jury, the court ap [350] patently construed tMs order so as to open not merely the question how much was due the petitioners for labor on the houses in question, but also the question whether a valid lien had attached for these amounts. Under the order thus construed, the only question open to controversy was the amounts severally due to the petitioners for which a lien had attached. Upon all other questions as to the validity of the liens the respondents are concluded by their defaults. In this view, we are of opinion that the respondents have no ground for exception to the rulings of the presiding judge. The first request was properly refused. The statute provides that the owner of a building, not being the party by whom or on whose behalf the contract for labor is made, may prevent the attaching of any lien for labor thereon not at the time performed, by giving notice in writing, to the person performing the labor, that he will not be responsible therefor. Oen. Sts. c. 150, § 4. The lien attaches, by operation of law, unless the owner gives such written notice. Orally forbidding the mechanic to do further labor will not prevent the attaching of the lien. In response to the second and third' requests the court instructed the jury that the contract might be terminated by the respondents’ forbidding Carson to go on under it, or by Carson’s abandoning it, and that, if it was terminated in either way and the petitioners notified thereof, they could not recover for any labor afterwards performed. These rulings adopted in substance all those parts of the requests which were proper and applicable to the only issue on trial, and were sufficiently favorable to the respondents. The court was not obliged, as requested ii the last part of the second request, to select a certain portion of the testimony in favor of the respondents, and comment upon it to the jury. The issue whether the contract had been terminated was submitted under proper instructions*; the extent to which the presiding judge should call the attention of the jury to the evidence bearing upon the issue was within his discretion, and is not open to exception. The last clause of the third request was rightly refused, because it was applicable only to the question whether the lien.i had been dissolved by a failure to file the certificates required by statute, — a question not open to the respondents. [351] The fourth and fifth requests were properly refused, and the instructions given upon the subjects embraced in them were correct. The fact that the petitioners were not able to state the precise amounts due on each house would not prevent them from maintaining a hen for any amount. If the jury were satisfied that a certain amount was due a petitioner for work done on either house, they would be justified in finding a verdict against such house for that amount, though they might not be satisfied that more was not due. The instructions on this point were carefully guarded, and under them the jury could have found for each petitioner, against either house, only the amount which he satisfied them remained due to him for work performed on that house. Exceptions overruled.