Winer v. Rosen

Crosby, J. This is a petition to enforce a mechanic’s lien. The case was heard by a judge of the Superior Court, sitting without a jury, who refused to make certain rulings requested by the petitioner and found for the respondent. The labor and materials were furnished under a written contract between the parties, by which the petitioner agreed to construct and install a low pressure steam heating apparatus in a building owned by the respondent for the sum of $1,250. After the work had been substantially completed and was in use, the petitioner and the respondent each received a written notice directed to the petitioner from the State boiler inspector, which recited that a certificate of inspection would be withheld until orders for certain changes in the work were complied with; and that it would be unlawful to operate the boiler without such, certificate. The changes referred to in the notice were as follows: “1. Remove the safety valve from its present connection and have it placed on a separate connection to boiler of the full size of the valve. “2. Replace the present steam gouge with one graduated to at least thirty pounds pressure.” The notice was dated and received by the petitioner on January 8, 1916. On that day, which was Saturday, he went to the premises with the inspector, who showed him what work [421] was required before the boiler could be operated lawfully, and on Monday, January 10, 1916, the petitioner made the changes in compliance with the notice. The case is before this court upon the petitioner’s exceptions to the refusal of the judge to make certain rulings which in substance were that the petitioner was entitled to establish a lien. The judge found as a fact “that the contract was completed to all intents and purposes in the late fall of 1915, and that the heating plant was in use at such time, although without the steam gouge or safety valve referred to above in the notice of the State boiler inspector, and although such use had been in violation of the State laws.” It is a reasonable inference from this finding, and from the refusal of the judge to make the rulings requested, that he was of opinion that the work done on January 10, 1916, was not in performance of the contract. He did not find that it was not done in good faith,, and there is nothing to show that the petitioner did it for the purpose of reviving a lien. The record shows that immediately after being notified by the inspector that the work was not done in compliance with the laws of the Commonwealth, the petitioner made the changes required. There is nothing tó show that in doing this work he did not act in good faith and with a desire to comply with the terms of the notice. If the last work so performed was required by the contract, the petitioner is entitled to a lien; otherwise, the lien is lost. The contract prbvides that the specifications are “for the construction of a First-class Low Pressure Steam Heating Apparatus . . .,” and that “ all materials to be used in the work to be of the best of their respective kinds, and the workmanship to be first class in every particular . . .” It is further pror vided that “All workmanship and materials used in the construction of this apparatus are to be the best of their respective kinds, and the apparatus is to be capable of warming all the rooms. •. . . Finally. This specification is intended to cover everything necessary to make a first class warming apparatus.” It is apparent from the portions of the contract above quoted that a heating apparatus which could not be lawfully used was not what the contract called for. It is equally clear that it was the duty of the petitioner to make the required changes and [422] remedy the defects which had been called to his attention by the boiler inspector. We are of opinion that the work done on January 10 was, for the reasons stated, within the terms of the contract, and that the rulings requested by the petitioner in substance should have been given. There was no time limit fixed for the completion of the contract, and the work doné on January 10 does not stand differently than where any other defective work is after-wards remedied so as to conform to the contract. "The statute is remedial and intended to protect those who lawfully enhance the value of land by the expenditure upon it of material or labor.” Shaughnessy v. Isenberg, 213 Mass. 159, 162. Thurston v. Blunt, 216 Mass. 264. In accordance with the stipulation of the parties, the following entry is to be made: Petitioner’s lien established in the sum of $695.90 with interest fromjhe date that the lien was claimed.