Quimby v. Durgin

Knowlton, J. The principal question in this case is, what was included in the “ lot of land,” upon which the petitioner had a lien under the Pub. Sts. c. 191, § 1. The debt for which he seeks to enforce his lien is the balance due upon a contract for the erection of two houses for the respondent. These houses were built upon a lot about three hundred and thirty feet long and two hundred and nine feet wide, upon which four other similar houses and a stable had been erected by the petitioner for the respondent a short time before. That the petitioner had a lien upon these two houses and the lot of land upon which they are situated is not disputed. But the respondent contends that the lot includes only the land covered by the two houses, or at most a small additional portion very near them, which, from its location, might be expected to be used by their occupants. We see no good ground for this contention. Nothing has ever been done on the land, or on paper, or even by spoken words, to indicate a purpose on the part of the owner to divide the large lot into smaller ones. The stable was erected “ to be used by such of the tenants of the several houses as chose to pay a certain rent therefor, and not to be used in connection with any house or houses exclusively.” That indicates an intention to keep the whole land as a single lot, and to let to tenants certain parts of it, with rights in common in other parts. Undoubtedly, the lot is capable of division; but where the owner will choose to run his lines of division, if he ever divides it, is only a matter of conjecture. The petitioner’s right to a lien upon every part of the lot is not affected by the fact that there are buildings not included in his contract which are a part of the real estate. Wall v. Robinson, 115 Mass. 429. Batchelder v. Rand, 117 Mass. 176. There is nothing in the case of Landers v. Dexter, 106 [108] Mass. 531, inconsistent with this view. The facts of that case are not fully reported; but upon reference to the original papers on file, it appears that the land described had been divided into as many lots as there were houses before the houses were built, and the contracts under which the respondent obtained the land treated it as made up of twenty different lots. The ruling upon this branch of the case was correct. Whether or not the note made by Coffin, the respondent’s son and agent, and given to the petitioner, was received as a payment, was a question of fact to be decided upon the evidence. In this Commonwealth, the giving of a negotiable promissory note is sufficient evidence of payment of a pre-existing debt, where there is nothing to rebut the inference ordinarily drawn from it. And this is true, whether the note is made by the debtor or by a third person. Ely v. James, 123 Mass. 36. But in the case at bar, there was evidence proper for the consideration of the court upon that subject. It appeared that the note was obtained for a special purpose other than payment of the petitioner, which was made known to the respondent’s agent, and that the petitioner did not give the respondent credit for it on his books, nor include it in a written statement of credits subsequently rendered. After the failure of Coffin, he several times told the petitioner that the respondent would pay it. The fact that, at the time the note was given, the petitioner had a lien and a claim against the respondent for all that was then due him, was a circumstance bearing upon the question whether he accepted the note as a payment. We cannot say that the presiding judge was bound to rule, as matter of law, that the note was received as' payment. Judgment on the finding.