Courtemanche v. Blackstone Valley Street Railway Co.

Knowlton, J. This case is submitted on an agreed statement of facts, and no inferences can be drawn in favor of either party. Old Colony Railroad v. Wilder, 137 Mass. 536. Mayhew v. Durfee, 138 Mass. 584. The burden is on the petitioner, and unless the facts agreed are all that the law requires to establish his case, he cannot recover. Until the building was nearly completed, the heirs of Bridget [52] Mulcahy were the owners of the land on which it was erected. They had orally agreed with the Worcester Engineering Company to sell this land to the respondent, but they had nothing to do with the contract for the erection of the building. They gave the respondent no title, but, having prepared deeds, they held them as security for the purchase money until the barn was almost completed. It does not appear that they authorized any work to be done on the land in such a way as to create a charge upon their interest in it, or consented to the erection of the building otherwise than upon the sole credit of the Worcester Engineering Company, or of the respondent as the owner of it. All that appears is that they knew of the purpose to erect the building, and of the erection of it as the work went on. In this particular the case seems to be covered by the decisions in Hayes v. Fessenden, 106 Mass. 228, Perkins v. Davis, 120 Mass. 408, and Saunders v. Bennett, 160 Mass. 48. We are of opinion that not enough is stated to show consent of the heirs of Bridget Mulcahy, as matter of law, within the meaning of the Pub. Sts. c. 191, § 1, and thus to bring the case within the decisions in which consent is held to be implied from the nature of the contract. See Hilton v. Merrill, 106 Mass. 528; Davis v. Humphrey, 112 Mass. 309; Smith v. Norris, 120 Mass. 58; Carew v. Stubbs, 155 Mass. 549; McCue v. Whitwell, 156 Mass. 205; Borden v. Mercer, 163 Mass. 7. Whether such consent could be inferred from the facts stated, if we were at liberty to draw inferences of fact, need not be determined. As the petitioner cannot maintain his lien on the ground of the consent of these heirs, the question arises whether he can have a lien for anything, and if so for how much, on the ground that the labor was performed or furnished by consent of the respondent owner. It is held in the cases first above cited that an interest under a parol agreement to purchase land is not enough to make one an owner who can create a lien. It therefore follows that no lien was created prior to the delivery of the deed. But on the delivery of the deed the respondent became the owner, and a lien would exist for work done afterwards by its consent. A small part of the work was done afterwards. We think the facts presented should be interpreted as a statement that the work done after the delivery of the deed was done [53] by the respondent’s consent. We also think that, under the facts stated, this consent applied to the doing of the work as a part of what was called for under an entire contract between the petitioner and the Worcester Engineering Company. In Davis v. Humphrey, 112 Mass. 309, 315, in reference to similar facts, this language is used: “There is no question that Goodwin knew that Davis was building for Humphrey under some agreement with him; whether he knew the precise terms of the agreement is not important. Under these circumstances his consent that Davis should build must be taken to be a consent that he should build for Humphrey as agreed upon; or in other words, to do all which his contract with Humphrey required. Such consent covers the work performed under such contract, and must be held to include that which had been done when the consent was given, as well as that which was afterwards done in completion of the contract.” A somewhat similar decision was made in Corbett v. Greenlaw, 117 Mass. 167. We are of opinion that under the facts of the present case, inasmuch as the respondent was the sole owner of the land by a record title when the last part of the petitioner’s work was done, and no other party was interested in it, the respondent’s consent to the continuance of the petitioner in the performance of his work under an entire contract should be held to be a consent to the whole work included in the contract, so as to have the same effect under the statute as if the owner’s' consent had been given in advance. We do not intimate that its consent would be so construed as against the previously existing rights of mortgagees or others. In Saunders v. Bennett, 160 Mass. 48, the report under which the case was argued did not show whether the work was done under an entire contract or not, and the question whether the owner’s consent to the work done after he received the deed applied to that which was done before was not presented by counsel nor considered by the court. Judgment affirmed.