Smith v. Emerson

Soule, J. By the true construction of the contract between the petitioner and Stiles, and the conduct of the parties thereunder, the petitioner did not furnish the brick for the block of stores. The statement of one price for the brick, and another price for the brick when laid, was adopted as a mode of computing the price which the petitioner was to be paid for labor and material and stock furnished in laying the brick; and a sale of the brick to him was not contemplated. Westfield v. Mayo, 122 Mass. 100. The petitioner, therefore, has at best only a demand for labor and materials furnished under a written contract in which no separate price for labor is specified, and no evidence [175] was offered by means of which it could be determined what part of the demand was for labor, or what part was for material. The petitioner cannot maintain a lien for the whole balance due him for labor and material, because his contract was not with the owner of the land, and he did not give the notice required by the statute of his intention to claim a lien for materials furnished. Gen. Sts. o. 150, § 2. He cannot maintain a lien for the labor, because he has not been able to show distinctly what the labor is worth, nor what part of his demand is for labor. St. 1872, c. 318. And until the last-named statute was enacted no lien existed for the labor done or furnished under an entire contract for labor and materials, when there was no lien for the materials. Graves v. Bemis, 8 Allen, 573. Morrison v. Minot, 5 Allen, 403. In this view of the case, the construction of the contract so far as it relates to the number of brick for which the petitioner was entitled to be paid would be unimportant, but for the question whether the petitioner can maintain a lien for the extra work; but as the construction which we give the contract disposes of that question, as well as of his demand under the contract, it is proper that it should be stated. As has been already indicated, the petitioner did not furnish the brick. There is no reason, therefore, why his account should charge Stiles with them. It should merely charge him with the agreed price for laying, including labor and materials, in one price, which is $6.55 per thousand for common brick, and $6.70 per thousand for face brick. As it was agreed that he should be paid at the rate of twenty-four brick to the cubic foot, he is entitled to the benefit of that stipulation, and to be paid for the constructive laying of one hundred and four thousand brick, that being the number by measure in excess of the number by count. If the account is made up in this way, it appears clearly that the petitioner has been paid more than his work and materials under the contract, his extra work, and the use of the derrick amount to. The error in his statement of his demand lies in his charging Stiles with both the price and the cost of laying the one hundred and four thousand of brick, which existed only by virtue of the arbitrary allowance of twenty-four brick to the cubic foot, and failing to credit him with the price of the same, which error [176] made Stiles his debtor, in excess of the truth, by the sum of $774.80. The construction of the contract was for the court, and the evidence offered in explanation of it was properly rejected. The ruling asked for was properly refused, for there was no evidence which would justify the ruling, as matter of law, or the finding, as matter of fact, that Emerson was the purchaser of the material or had assumed Stiles’s contract. His conduct in the matter is fully explained by his having guaranteed the performance of the contract on the part of Stiles. Moreover, neither the certificate recorded in the office of the city clerk, nor the petition, is based on the theory that the brick were laid under a contract with Emerson. The ruling that the petition could not be main-tamed was correct. Exceptions overruled.