Miller v. Batchelder

Endicott, J. Upon the facts reported the petitioners were engaged in a continuous service or employment on the houses of the respondents. This service was rendered under three several agreements. The first was to perform labor, as painters on certain portions of the houses, the owner to furnish the materials ; the second to perform labor and furnish materials in painting the inside walls of the houses. Both these agreements were in writing. The third was an oral agreement, made while the work under the others was in progress, to put up mouldings and borders on the inside walls, when painted; and was performed im 181 mediately after the painting was completed under the second agreement. The work under the first and second agreements was concluded on the last day of October, 1872, under the third on November 5, and the certificate was filed on December 4, following. All these agreements related to the same premises, called for similar kinds of work, and the last two may be said to be addiditional to the first. The third was in terms additional to the second, providing that mouldings and borders should be put up on the inside walls after painting. The whole constituted one employment to do certain stipulated work and furnish certain materials, the details of which, and the prices to be paid therefor, were agreed to on three separate occasions in several agreements, but all entered into before the work under either had been completed, and therefore existing contemporaneously with each other. Under these circumstances the work may be treated as if done under one agreement, and the parties contracting to do it cannot be said to have ceased to labor and furnish labor and material until they had completed all they had agreed to do. The ruling of the presiding judge that the certificate was not filed in season to preserve the lien for labor and material furnished under the first and second agreements was therefore erroneous. Exceptions sustained.