Corbett v. Greenlaw

Endicott, J. The respondents contended, before the auditor, that the petitioner had no lien, because his certificate was not filed in season, and also because he knowingly and wilfully claimed more than was due. He then made no objection to the consideration of these questions by the auditor. It may well be doubted whether he can object for the first time, when the report is read at the trial, that the auditor had no authority to pass upon them, see Fair v. Manhattan Ins. Co. 112 Mass. . But as an important question of practice is involved, we do not rest the decision on that ground. It is well settled that an auditor is authorized to hear and determine all questions incidental to and necessarily involved in a statement of the accounts and which are essential for the correct [174] determination of the subject matter submitted to him. Gen. Sts. c. 121, § 46. Upon what questions he may pass depends upon the nature of the controversy, and varies with the exigencies of each particular case. He may allow or disallow promissory notes which enter into the account between the parties ; he may determine whether a person was the agent of the defendant to purchase the goods sued for; he may report that the acceptor tras in funds at a certain time ; he may, in stating the account, where a party seeks to redeem land from a mortgage, find an agreement to treat principal and interest as a new debt, on which interest may be computed thereafter. Locke v. Bennett, 7 Cush. 445. Barnard v. Stevens, 11 Met. 297. Gould v. Norfolk Lead Co. 9 Cush. 338. Quimhy v. Cook, 10 Allen, 32. If a fact is pertinent to the inquiry, and necessary for its intelligent solution, he may pass upon it. In proceedings to enforce a mechanic’s lien, the inquiry is not merely to determine what is due from the respondent to the petitioner for labor and materials furnished, but what is due for which the petitioner .can enforce a.lien upon the land. When therefore the court, finding a careful examination of accounts necessary, in the exercise of its discretion, sends such a case to an auditor to hear the parties, examine their vouchers, and to state their accounts, those accounts are referred to and included in the order, which relate to the subject matter of the inquiry, and bear directly- upon the question to what extent the plaintiff has a lien upon the premises. All matters of fact legitimately involved, and bearing upon the question of the lien, 'are within the scope of the auditor’s authority to hear and determine. At the threshold of his investigation is the question, whether the certificate was seasonably filed. If not, the lien is dissolved, and there is no account to be stated. So if it is alleged that the petitioner has knowingly and wilfully claimed in his certificate more than is due, the proceedings aie invalidated and the lien cannot be enforced. Both are essential and vital questions bearing upon the issues presented to him and to be decided by him. The findings of the auditor on these points were within his authority and properly read to the jury. There was evidence before the auditor that the petitioner, while performing the labor for which he here claims a lien, was also at [175] work for the respondent Greenlaw upon other buildings at Mount Pleasant. The accounts between the parties were confused, and the auditor devotes much of his report to their explanation and decision. Some of the payments by Greenlaw, for which the petitioner gave credit to the work at Mount Pleasant, should have been credited on this account. And the auditor, while finding that the certificate is not correct in this respect, also finds that it is not corruptly so. It does not necessarily follow, from the fact that the petitioner knowingly omitted a credit, that the jury would be justified in finding that he knowingly and wilfully claimed more than was due. It may have been done under a misapprehension, or have arisen from a confusion of the two accounts. The presiding judge properly modified the ruling asked for on this point by instructing the jury, that the fact that the petitioner omitted the credit was a fact for them to consider, as bearing upon the question whether he knowingly and wilfully claimed more than was due. It does not clearly appear that Allen, who was the mortgagee, and was advancing money to Greenlaw to pay for the buildings in process of erection on the land, had any authority from Green-law to pay the $250 to the plaintiff.. It was properly left to the jury to determine that question. It is also urged, that as Greenlaw did not own the land when he made the contract with the petitioner, no lien ever attached in favor of the petitioner for the labor performed and furnished under the contract. The material facts are, that on November 6, the plaintiff made an oral contract with Greenlaw to lay the bricks for six houses on the land in question. On November 9, Greenlaw took his deed of the land from Allen. On November 23, Greenlaw being then the owner, the petitioner commenced to work under his contract made on November 6 ; and no question is made that he did so with Greenlaw’s consent. The case differs from Hayes v. Fessenden, 106 Mass. 228, relied on by the respondents. In that case Hayes made his contract with Fessenden, who was not the owner of the land at the time ; the consent of the owner was not obtained; and Fessenden did not become the owner till after the work was completed. There was no labor performed by virtue of an agreement with or by consent of the owner, and no lien attached under the Gen. Sts. o. 150. But in [176] this case the work was done by consent of Greenlaw after he became owner, and a lien attaches by the terms of the statute. This lien is not to be defeated because the oral agreement to do the work was made before Greenlaw took his deed. Exceptions overruled.