Hilton v. Merrill

Mobtoít, J. Our statutes provide that any person to whom a debt is due for labor performed in the erection, alteration or repair of any building or structure upon real estate, by virtue of an agreement with, or by consent of, the owner of such building or [530] structure, shall have a lien upon such building or structure, and upon the interest of the owner thereof in the lot of land upon which the same is situated, to secure the payment of the debt so due to him. Gen. Sts. c. 150, § 1. In Parker v. Bell, 7 Gray, 429, it was held that a plasterer, employed by a builder who had made a written contract with the owner of land to erect a house thereon, was entitled to a lien for the debt due him for his labor, upon the building and land. This was upon the ground that the owner of the land, by his contract with the builder, empowered him to employ, in the execution of his contract, the necessary workmen; and that the labor of the workmen was performed by the consent of the owner, necessarily implied from the contract under which the house was built. The principle of this case governs the case at bar. The contract between Herrick and the respondent was not a mere agreement, as was the case in Hayes v. Fessenden, ante, 228, for the sale of land to Herrick. By it, the respondent agreed to advance money to Herrick to be expended and applied in erecting houses upon the land, and to convey the land and houses to him upon payment of the amount agreed upon; and Herrick agreed to erect the houses, and pay the agreed amount, and purchase the land and houses within a specified time. It was within the contemplation of the parties, and indeed was the principal purpose of the agreement, that Herrick should proceed and. erect houses upon the land of the respondent. The houses, while in process of erection, became the property of the respondent, and remained his property until a conveyance by him. By implication from the contract, he authorized Herrick to employ, either directly or through sub-contractors, the necessary workmen to erect the houses; and the labor of the workmen thus employed was performed by his consent within the intendment of the statute. The petitioners are thus brought strictly within the provisions of the statute. A debt is due to them for labor performed in the erection of a building by consent of the owner of such building, and they are entitled to maintain their petition. Weeks v. Walcott, 15 Gray, 54. Mulrey v. Barrow, 11 Allen, 152. Clark v. Kingsley, 8 Allen, 548. Judgment for the petitioners.