Bristow v. Evans

Soule, J. No lien for labor performed or materials furnished in erecting or repairing a building or structure can be enforced, unless the person wishing to avail himself of it files for record a statement of the amount due him, together with a description of the property intended to be covered by the lien, sufficiently accurate- for identification. Gen. Sts. a. 150, § 5. The lot first named in the petition is there described as bounded north by Healey Street, and on the west by Buckingham Street, and on the south and east by land of the owners of the lot. The lot named in the statement of account filed for record, as that intended to be covered by the lien, is described as bounded east by the estate on the corner of Buckingham Street and a new street, and south by the new street, which is described as the first street on the left going northward on Buckingham Street from Concord Avenue, and as bounded on the north and west by other estates of said owners. Healey Street runs from Buckingham Street on the right of one going northward, and lies at some distance south of Concord Avenue. There is the same difference between the description in the petition of the second lot therein named, and the description in the statement of account filed for record of the lot intended to be covered by the lien. The third lot named in the petition is there described as bounded westerly by Buckingham Street, and southerly by Parker Street, and northerly by estate of Stevens, and easterly by Other land of the owners of the lot. The lot named in the state [552] ment, as intended to be covered by the lien, is there described as bounded on the east by Buckingham Street, and south by the new street running between Buckingham Street and Concord Avenue, next to the southward from Craigie Street and a little to the north of Stevens’s barn, and as bounded north and west by estate of Otis (the supposed owner of the lot in question), Parker Street leaves Buckingham Street at some distance northerly from Craigie Street. There is nothing in the description of either of the lots, in the statements filed for record, which would warrant a jury in identifying the lots there described as those which are described in the petition. If the description had been more general, simply describing the several lots as being on the corner of two streets named, and of certain length on each, and the petition described the same lots, and the evidence showed that the respondent owned them, it would have been sufficient. Patrick v. Smith, 120 Mass. 510. In such case, there would be no contradiction between the statement and the petition. In the case at bar, the petition contradicts the statements as to the location and boundaries of each of the three lots. It is impossible that either of the lots described in the petition can be the lot described in either of the statements. The only point of agreement is in the allegation that the petitioner had performed labor on a building then in process of erection; but as he had done this on a building on each of three lots, the allegation is of no effect in determining to which of these the statement points. It would hardly be contended that a petition for enforcing a lien on a lot described, on the west side of a street, would be supported by proof of a statement filed for record, in which the premises were described as a “ lot, with a new house thereon, situate on the east side of the street.” The evidence wholly failed to support the petition, and the learned judge erred in refusing so to rule, in accordance with the request of the respondent. New trial ordered.