Daley v. Legate

Morton, J. The facts in these two cases are very much alike, and they were argued together. At the argument the petitioner in each case moved that the appeal be dismissed and the judgment affirmed, on the ground that the appeal had not been entered in this court within a reasonable time, as required by statute. Pub. Sts. c. 158, § 15. The motion was dismissed in each case, it appearing that there was a reasonable excuse for the delay. The cases were referred in the Superior Court to an auditor to “ hear the parties, examine their vouchers and evidence, and state the accounts, and make report thereof to the court, the finding of the auditor to be final on questions of fact.” There was no agreement, except as may be inferred from the auditor’s rule, that the auditor’s report was to be regarded as a case stated or as an agreed statement of facts. In the absence of such an agreement, it is doubtful, to say the least, whether an appeal would lie from the judgment of the Superior Court. Hutchinson v. Tucker, 121 Mass. 402. Chapman v. Briggs Iron Co. 6 Gray, [260] 330. But, in view of the fact, that the stipulation in the auditor’s rule that his findings should “ be final on questions of fact” could not have been inserted except by agreement of parties, we think that the fair inference is that they intended that the auditor’s reports should be treated as agreed statements of facts, and accordingly we proceed.to consider the cases. The respondents contracted with one Fleming to furnish the materials and build a block on their lot. Fleming in turn contracted with one Crowley for a round sum to furnish the labor and materials required for the granite work. Both of the petitioners were in Crowley’s employ, and both worked in his yard on materials intended to be used and actually used in the erection of the respondents’ building, and knowing at the time that the materials were to be so used. In Daley’s case it further appears that there was evidence tending to show that the “ work, consisted in dressing the rough stone into forms expressly designed and made according to plans for use on said building,” and that he worked three days on the building itself, which are included in the labor for which he seeks to establish a lien. We think that the respondents must be held to have contemplated that Fleming might sublet a portion of his contract, and that therefore the labor performed by the petitioners was performed with their consent. Parker v. Bell, 7 Gray, 429. Hilton v. Merrill, 106 Mass. 528. Beatty v. Parker, 141 Mass. 523. It was not necessary in order to entitle the petitioners to liens that the labor should have been performed on the premises where the building was in the process of erection. “ Under certain circumstances, a lien may be established for work done, away from the premises, in the construction of a building.” Webster v. Real Estate Improvement Co. 140 Mass. 526. Wilson v. Sleeper, 131 Mass. 177. Jones v. Keen, 115 Mass. 170, 185. Weeks v. Walcott, 15 Gray, 54. Dewing v. Wilbraham Congregational Society, 13 Gray, 414. Clark v. Kingsley, 8 Allen, 543. The cases of Tracy v. Wetherell, 165 Mass. 113, Eisnor v. Dinand, 165 Mass. 116, note, and Donaher v. Boston, 126 Mass. 309, are distinguishable. In those cases it was held that subcontractors who had agreed to furnish materials wrought to a stipulated condition which they might have procured elsewhere had no lien for the labor expended in preparing such material, be [261] cause their contracts were for materials and not for labor and A materials, or were for the sale of finished articles of merchandise at a fixed price to the contractor. Those cases would have more nearly resembled these if Crowley had been the petitioner seeking to maintain a lien for the labor furnished in preparing the granite for the use to which it was put. As they stand they are cases in which the petitioners seek to establish liens for labor, performed under circumstances which imply the consent of the respondents, “on material which was designated as intended for use in the buildings on the premises, and was in fact so used,” (Wilson v. Sleeper, ubi supra,) and was not adapted to or available for general use or sale in the market. The fact that Crowley might not have had any lien for the labor for which the petitioners seek to maintain liens, or that he has been paid for such labor, does not operate to prevent them from maintaining liens. Bowen v. Phinney, 162 Mass. 593. Atwood v. Williams, 40 Maine, 409. It is to be observed that, according to Crowley’s contract with Fleming, he was to “ cut all granite in buildings and set same in place above cellar wall ”; so that by the very terms of his contract Crowley was to furnish labor and material for the erection of the respondents’ buildings, and not merely finished articles of merchandise to Fleming the contractor. Though it i? said of Daley that he commenced work in Crowley’s yard as an apprentice, there is nothing to show that, either at the time when he performed the labor for which he seeks to establish a lien, or at any other time, he was not entitled to the wages which Crowley agreed to pay him in addition to the instruction which he received. We assume that the $5.66 which the auditor finds was paid Daley on account of the three days’ work which he did on the buildings has been properly credited. The result is that in each case we think that the judgment should be affirmed, and it is So ordered.