Wera v. Bowerman

Braley, J. By Pub. Sts. c. 191, § 1, under which the certificate of lien was filed, and the proceedings for its enforcement begun, it was provided that any person to whom a debt is due “ for labor performed or furnished . . . in the erection ... of a building . . . upon real estate, by virtue of an agreement with or by consent of the owner of such building ... or of any person having authority from or rightfully acting for such owner”, shall have a lien upon the building and the interest of the owner in the land for labor performed and furnished. To create a valid lien for labor, therefore, it is not obligatory that the work shall be manually performed by the petitioner, but the statute is satisfied, and it is sufficient if the labor has been furnished by 460 him in the sense that the work has been done by his employees. Monaghan v. Goddard, 173 Mass. 468. Scannell v. Hub Brewing Co. 178 Mass. 288. It, indeed, was held in Parker v. Bell, 7 Gray, 429, upon which the respondent relies for a contrary doctrine, that a lien could be established only in favor of the person actually performing the work, but that decision was made under the St. of 1855, c. 431, § 1, by which a lien for labor was thus restricted. By Gen. Sts. c. 150, § 1, re-enacted in Pub. Sts. c. 191, § 1, this right was extended to include labor furnished as well as performed. See Getchell v. Moran, 124 Mass. 404, 408. For the purpose of the hearing of a motion filed by the petitioner to have issues framed for a jury, the parties agreed upon certain facts, among which was the statement that the “ petitioner himself did no labor upon the building within thirty days prior to the filing of the lien,” and upon this motion being overruled the case then went to trial before the judge upon the merits. To establish his lien the petitioner then offered to prove in addition to the agreed facts that he had furnished labor on the respondent’s building according to the contract as set forth in the first item of his account, and within the time prescribed by the statute had duly filed his certificate of lien, and that the labor had been furnished with the knowledge and consent of the re= spondent, but the evidence was excluded, and the petitioner, apparently was confined to the agreed statement of facts. This evidence, however, was competent, and when taken in connection with the agreed facts would have been ample to sustain the petition. Scannell v. Hub Brewing Co. 178 Mass. 288. Vickery v. Richardson, 189 Mass. 53. The judge thereupon ruled that the petition could not be maintained “ because the petitioner had not performed any labor personally within said thirty days and that the petitioner had no lien for labor furnished by him and done by his servants or employees within thirty days prior to the time of the filing of his lien.” Plainly this ruling was erroneous for reasons already stated, and an exception having been properly saved the order must be, Exceptions sustained.