Ellenwood v. Burgess

DEVENS, J. The petitioners made a contract under seal, with the respondent Burgess, which must be interpreted as a waiver of any lien upon the land. It contemplated a payment by three promissory notes, all of which had been tendered to them before they undertook to rescind the contract, and two of which they had actually accepted before filing the certificate to enforce a lien. The petitioners became apprehensive of the responsibility oí Burgess at the time of receiving the first note from him, but were reassured upon this point by Williams, and thereafter, although fully aware that the land was not the property of Burgess, continued in the performance of their contract with him until it was fully completed by them. They contend that, although an express contract under seal was made with Burgess, the law will imply a coexistent contract with Williams as the owner of the land, which began to be performed as soon as the work was begun, and the amount due on which became payable when it was finished. They further contend, that they had the right to elect to abandon their claim against Burgess, and rescind their contract with him, after discovering the fraudulent conduct of Williams, and after they had filed their certificate for a lien, and the statement, which purported to be a just and true account of what was due them, and thereafter to pursue their remedy against Williams by the enforcement of a lien, the amount of which should be determined, by the increased value of the land of Williams due to the labor and materials they had expended on it. They also contend [540] that this is so, irrespective of any intervening rights of third parties. When the petitioners had made a contract under seal with Burgess, even if it were possible to hold, on account of any relation of agency which Burgess may have sustained to Williams, that Williams was responsible thereon, which we are not prepared to say, it certainly is not possible to hold, when the con-' tract under seal has been fully performed, that Williams must be implied to have entered into an entirely distinct contract, by which an entirely different consideration was to be paid for the work and materials provided by the petitioners. Whatever remedies the petitioners may have against Williams for the deceit by which they were induced to enter into the contract with Burgess, or by which they were induced, even after their suspicions were aroused, to continue to perform it, the law cannot imply that Williams contracted thereby to pay them the money for their labor and materials, instead of delivering the note's, which was the contract price therefor. In considering the damages which the petitioners have sustained by the fraudulent device of Williams, it may be proper to consider bow much his land was increased by the value of the labor and materials which the petitioners were induced to place upon it; but this is quite different from a contract on his part to pay for it. His fraud cannot make a contract on his part to do that which neither he nor Burgess ever promised. Williams was not an actor in the transaction, and made no contract. If any lien can be maintained against the property of Williams, it must be upon the ground that the petitioners had performed and furnished labor upon it with his knowledge and consent. But no lien attaches for materials furnished, unless the person furnishing the same, before so doing, gives notice in writing to the owner of the property to be affected by the lien, if such owner is not the purchaser of the materials, that he intends to claim such lien. Pub. Sts. c. 191, §§ 1-3. Although the petitioners knew that Williams was the owner of the property while they were performing their contract, no such notice was given to him, and he certainly was not the purchaser of the materials. If it is possible to interpret the account filed as specifying the sums due for labor and those for materials, and it is somewhat difficult [541] to do so, at the trial it appeared that, while under the contract materials of various kinds were to be and were furnished, no evidence was offered of their price or value, or of the amount or quality used, or of the amount or value of the labor furnished. It is well established, that, where the two classes of charges for labor and for materials are so mingled, the contract being entire, that they cannot be determined respectively, there is no lien for either. Gogin v. Walsh, 124 Mass. 516. Clark v. Kingsley, 8 Allen, 543. At the trial, no debt could have been found to be due on the contract under seal, the petitioners having then formally abandoned and rescinded it, and further, there was no default in the performance thereof, all the notes having been tendered. Mor could any debt have been found to be due for specific labor or materials, as they were not distinguishable. Mor was it competent to establish a lien for the amount in which the land had been enhanced in value, as the statute makes no provision therefor. For the reasons above stated, a lien cannot be maintained for the item of putting in the water. There was no evidence as to what the labor or what the materials, separately, were worth; nor is there any statement of this item in the petition. The remarks we have made render it perhaps superfluous to consider especially the claim of the petitioners to establish a lien, as against the rights of Mrs. Cotton, to whom this land was mortgaged in good faith on her part, and for full consideration; but there is an independent ground in relation to her claim, which is decisive in favor of its validity against the lien which the petitioners seek to assert. The petitioners were acting under their written contract when Mrs. Cotton’s rights accrued. Even if the contract they had made with Burgess was voidable, it was not void, and they had made no election to avoid it. Mrs. Cotton’s rights accrued while it was still in force; and the subsequent acts of the petitioners, whatever might be their effect on the rights of Burgess or Williams, could not diminish hers. When, under a contract, no lien exists, its rescission cannot create one against the rights of innocent third parties which may have intervened while it was still in force. Mrs. Cotton had no knowledge of the frauds of Williams [542] or Burgess, or of any agency of one for the other. Upon the same principle on which it has been held that a bona fide purchaser of a chattel from a fraudulent vendee, before rescission, acquires a good title against the defrauded vendor, a person who honestly advances her money upon a mortgage of real estate, upon which there is no lien by the then existing contract, cannot be prejudiced by a rescission of the contract, even if, as against other parties, such rescission might operate to create a lien. Petition dismissed.