Scannell v. Hub Brewing Co.

Holmes, C. J. This is a petition to establish a lien for labor furnished under an entire contract for labor and material made with one Segal by the respondent’s consent. Pub. Sts. c. 191, § 2. The entire contract price was §8,300. The value of the [292] labor was $5,663.02. There had been paid generally upon the contract $2,000 before the beginning of proceedings to assert their lien by the petitioners, and in the statement of their account and in their petition as originally filed, half this sum was credited upon the amount due for labor. At the trial the petitioners were allowed to amend their petition by striking out this credit of $1,000, and claiming the whole value of the labor as above stated. This was excepted to. And although the only exception before us is that of the respondent, (Pub. Sts. c. 167, § 85, Driscoll v. Holt, 170 Mass. 262,) we are content to assume for the purposes of decision that the question intended to be raised is open one way or another under the bill. The respondent treats the credit as an appropriation of payments. Under an entire contract of course there is no such thing as an appropriation of payments to particular items of the entirety. But assuming that such an appropriation would be possible after it became material to discriminate, it could not be done by the creditor alone after the payment had been made. Moreover a pleading as such does not purport to be an appropriation. It purports to state the supposed effect of past transactions. It, and the statement of the account as well, is a narrative, not an offer. When found to be mistaken, it properly may be amended. The inaccuracy in the statement was within the saving of the statute. Pub. Sts. c. 191, § 8. In fact the part payment had no effect upon the petitioners’ rights. All that it did was to diminish.the amount of the contract debt unpaid. The lien could not be enforced beyond, but it could be enforced up to that amount, and as the amount unpaid exceeded the total claim for labor the lien was unaffected. Casey v. Weaver, 141 Mass. 280. In Driscoll v. Hill, 11 Allen, 154, decided under an earlier state of legislation, the contract was said not to have been entire, and it did not appear what part of a general payment was attributable to the debt for labor. The petitioners were right in their law, and the amendment properly was allowed. Burrell v. Way, 176 Mass. 164. The labor was done under an agreement to “ furnish, deliver and erect,” in the respondent’s brewery in Boston, boilers “ set up in brickwork, with all pipe connections ” ; “ also all the Tank work, Bins, Hoppers etc., embracing the Hop-Jack, Mash Tub, [293] Collecting Tank, Malt Scale Hopper, Meal Scale Hopper, Hopper for Cyclone Dust Collector, Twin Bin for Rice and Ground Malt, and Receiving Bin for Malt Storage Elevator,” according to specifications. Part of the work was done at the petitioners’ works in Lowell in preparing material to be used in the construction of the brewery. It did not appear how much labor was spent on any particular part of this work, and the respondent contends that therefore if the lien fails for any portion of the labor it fails altogether, and that it must fail in part because some of the enumerated articles were personalty, so that work spent upon them was not furnished in the erection of a structure upon real estate within Pub. Sts. c. 192, §1, The question was raised by requests for rulings that the hop-jack, malt scale hopper, meal scale hopper, and the cyclone dust collector were personal property, etc. The court found that all the articles were so annexed to and connected with the realty that the petitioners were entitled to a lien for the labor performed upon them, and refused the requests. The judge also refused to rule that the petitioners could not recover for work done at Lowell upon the "boilers, tanks and sheet iron work. Whatever test be adopted to decide whether labor is performed in the erection of a building, Boston Furnace Co. v. Dimock, 158 Mass. 552, the judge, to say the least, was warranted in finding that the labor furnished by the petitioners satisfied the test. All the different objects mentioned were parts of the brewing apparatus which, presumably at least, the shell of the building was erected to receive. They were the point and object of putting up the walls and floors. There was testimony that most of them were riveted to the building directly or indirectly, and that they all were connected together by pipes. They were built up in the building and could not be got out except by taking them to pieces, which would seem from the testimony of the respondent’s witnesses to be commercially impracticable. “ It would be far cheaper to get new ones.” _ If any object was more movable than the others, it none the less was an integral part of one original whole, which as a whole was a building and real estate. Whether they were connected by the petitioners or by others, the petitioners’ contract and their work contemplated that the connection would be made, and the petitioners’ contract [294] was not performed until the objects were irrevocably within the building and manifestly on their way at least to become a part of it. The consideration last mentioned shows that the different articles do not encounter the difficulty dealt with in Tracy v. Wetherell, 165 Mass. 113. From the point of view of the mechanics’ lien law the contract was not merely a contract for the sale of a chattel which the petitioners might or might not make themselves and the respondent might use where it chose. The objects furnished were made, and presumably had to be made, by the petitioners, and with special reference to the particular place. No doubt, genetically, they were objects well known in the brewery business, but, as they were furnished according to minute specifications and drawings, the natural inference is that their particular form and details rendered it necessary to make them from the beginning in order to meet the requirements. Indeed, it is said in the specifications of the contract that “ all the . . . labor of every kind required for the construction, erection and proper finishing of the work . . . must be furnished by ” the petitioners. After their parts were made and fitted the tanks, bins, etc. had to be constructed in the building. They were practically irremovable when constructed, and, whether connected with the building by the petitioners or by others and before or after the petitioners had finished their part of the work, were put where they were for the purpose of being connected, and either way equally were furnished for a part of the building into which they were incorporated. Turner v. Wentworth, 119 Mass. 459. As the labor in Lowell was contemplated by the contract and was a necessary step to the making of their final addition to the building by the petitioners, it is within the security of the lien. Wilson v. Sleeper, 131 Mass. 177, 179. Daley v. Legate, 169 Mass. 257. It seems unnecessary to cite further authority or to go more into detail to show that the exceptions cannot be sustained. See Allen v. Mooney, 130 Mass. 155; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, 522. Exceptions overruled.