Bordier v. Davis

Carroll, J. These two petitions to enforce mechanics’ liens, R. L. c. 197, were tried together. The respondent Alice H. Davis owned a tract of land in Chelsea, a part of which, on Liberty Street was acquired on May 18, 1915, the description of the part so acquired corresponding with the description in each petition. The remainder of the large tract had been owned by her for several years. In June, 1915, she made an oral agreement of sale of the entire tract to the respondent Hunnewell, who divided it into ten lots and made a plan which was in evidence at the trial. In September, 1915, the respondent Davis at the request of Hunnewell conveyed these lots to one Barker, who mortgaged the entire property to one Soden “ to secure the purchase money for said land and the advances to cover the cost of the construction of the buildings.” On June 25,1915, Hunnewell made a contract with the petitioner Bordier, to perform and furnish all the labor necessary in the brick mason work of a building to be constructed on lot “ J ” at $7.25 per thousand, Hunnewell to supply all material. On July 27, because no materials were supplied Bordier, he ceased to labor. A contract with the petitioner Mastracci and Hunnewell was executed July 1, 1915, wherein Mastracci agreed to furnish all the labor necessary for the carpenter work in the erection of ten houses at $690 for each house, Hunnewell to supply the material. Mastracci did the work on the building on lot “J ” and started the frame work on lot “ I ”, and on July 27 he stopped work because no materials were supplied him. The respondent Davis was the owner of the premises, and if Hunnewell was rightfully acting for her in procuring the labor for the erection of the house, the work was done with the consent of one having authority from the owner. R. L. c. 197, § 1. Roxbury Painting & Decorating Co. v. Nute, 233 Mass. 112, and cases cited. — 455 — It was agreed that she knew the work was in progress, urged the petitioners to hurry it on and told them that the houses were hers and that she would pay them; that if they required any materials, to get them from her husband; and that the petitioners stopped work because Davis “ refused to supply . . . any more material, in accordance with the terms of . . . [the] contract.” From these facts the finding that Mrs. Davis assented to the erection of the building was fully warranted. R. L. c. 197, § 1. Roxbury Painting & Decorating Co. v. Nute, supra. Davis v. Humphrey, 112 Mass. 309. Carew v. Stubbs, 155 Mass. 549. Brown v. Haddock, 199 Mass. 480. The respondents contend that the statements filed in the registry of deeds by the petitioners were not just and true accounts of the amounts due. R. L. c. 197, § 6, directs that the lien shall be dissolved unless the person claiming it, within thirty days after he ceases to labor, filed in the registry of deeds a just and true account of all amounts due him, together with all just credits. Under § 7, the validity of a lien shall not be affected by any inaccuracy in the statement, unless it is shown that the person filing the statement has wilfully and knowingly claimed more than is due him; and by § 16, if the owner has failed to perform his part of the contract, the other party, if without default, shall be entitled to a reasonable compensation for the work done in proportion to the price stipulated for the whole. In addition to the seventy-two thousand bricks laid by Bordier to July 24, he performed and furnished labor to July 27, when without his default the contract was broken by the respondents. In his statement he claimed a balance of $420 due him, the contract for the brick work amounting to $545 and a credit for $125 paid him by Hunnewell. Bordier was entitled to a reasonable compensation for the labor performed and furnished. R. L. c. 197, § 16. McCue v. Whitwell, 156 Mass. 205. Orr v. Fuller, 172 Mass. 597. We discover no inaccuracy in his statement such as to justify the dissolution of the lien, and there is no intimation that he wilfully and knowingly claimed more than was due him. Mastracci furnished the labor in the erection of the house on lot “J ”, as far as putting on the standing finish, and had started the frame work on the other building when he was forced to stop work on both buildings because Davis refused to supply him with — 456 — materials. In his statement he gave credit for the money paid him and states that the contract price was $690, leaving a balance of $635. The judge found that the value of the work done on both houses was $594, and found that Mastracci was entitled to $581.03.. We are unable to discover any inaccuracy in Mastracci’s statement, sufficient to prevent the maintenance of his lien. He was to build ten houses at $690 for each house, and in setting out the contract price at $690 he did not fail to make a substantially true and just account of the amount due him. There is no evidence that he knowingly and wilfully claimed more than was due and it was found that he did not intend to mislead in stating his account and it was not sufficiently misleading to affect his lien. R. L. c. 197, § 7. The respondents also contend that the land was not sufficiently described, that if the petitioners are entitled to establish their liens, it must be either on lot “J ” as shown on the plan, or on the entire tract, including the land cónveyed to the respondent Davis by deed of May 18, 1915, and described in the petitions, and in addition the remainder of the lot which she owned at this time.. The petition in describing the land, followed the description in the-deed of May 18, 1915. This deed described one lot of land, and it was upon this entire lot as described and upon no other that the-lien was sought to be established. Before June 25, when Bordier’s contract was made, the cellar for the house on lot “J ” had been dug and the stakes set for the-house to be erected on lot “I”; and before July 1, when Mastracci’s contract was executed, excavations for the cellar on lot “ I ” were-begun. Before entering into any contract with the respondent Hunnewell, the petitioners viewed the premises where the work was to be done and saw the cellars as dug and laid out on lots “J and “ I ” but the petitioners never had a plan of the premises and nothing had been done to show, on the face of the earth, where the division line ran between lots "J ” and " I.” The case was heard on an “ agreed statement of facts.” There was no evidence other than these facts, and if the judge’s findings and rulings are supported by these facts the exceptions must be overruled. Frati v. Jannini, 226 Mass. 430. The judge found that the lot described in the deed to Davis of May 18, 1915, and described in the petitions was the lot on which the work was done; — 457 — and further found “ that Mastracci did work on both houses to the value of $594, and that he did two days’ work with some men on the house on lot I. It is impossible, however, to apportion the work as done between the two lots upon which the building was being erected.” We construe this to mean that the apportionment is impossible between the lot described in the deed to Davis of May 18, 1915, and that part of lot “ I ” on the plan which falls outside the lot described in the deed of May 18,1915. There was no fence nor mark nor stake on the surface of the land to show the boundaries of lot “J ”, and by merely building several houses, the land on which they were built was not thereby divided into several tracts. There was no plan in the possession of the petitioners showing any division of the land into separate lots, and they were not required to describe lot “J ” in their petition as the lot on which they claimed their lien. Mrs. Davis bought the lot described in the petitions on May 18, 1915, by a single conveyance, but a few weeks before the lienors made their contracts. The rest of the large tract she had owned for several years. There was nothing on the face of the earth indicating a physical unification of the two tracts into one estate, and there is nothing to show that the owner intended to deal with the two lots as one. Mere identity of title is not enough. She treated it as a separate lot by her purchase. The lienors had a right to accept the record of the deed of May 18,1915, as constituting one lot. They were not obliged to search the records to discover whether the adjoining premises belonged to the same owner, and describe the entire premises as one lot, when the landowner may never have intended a unification of title but proposed to keep and treat the new purchase as a separate estate. In describing the lot as constituting a single tract as shown by the deed, the petitions followed the division made by the owner by the purchase, and the landowner cannot be heard to complain in default of having expressly or impliedly informed the lienor that he had incorporated the recent purchase into the larger estate owned for many years before. The lienors did not by their petition attempt to divide the. land at their option. They simply accepted as true the declaration of the owner disclosed by the record. We find nothing in Quimby v. Durgin, 148 Mass. 104, Collins v. Patch, 156 Mass. 317, Whalen v. Collins, 164 Mass. 146, Donnelly v. — 458 — Butler, 216 Mass. 41, 43, Orr v. Fuller, 172 Mass. 597, at variance with what is here stated, and the result is not affected by the fact that Mastracci’s agreement was to build ten houses. There was no deed on record that Hunnewell had purchased the entire tract and so far as Mastracci knew, Hunnewell might be purchasing the rest of the land from some person other than Mrs. Davis, and when the work of the lienor was stopped and he could proceed no further he had a right to place his lien on the land on which he worked in whole or in part as he found it described on the records. He was not required to make a further search than the record of this lot on which he worked, unless there was something on the face of the earth which indicated, by the owner’s acts, an intention to change the situation created by the deeds on record. There was no error of law, therefore, in finding that the work done by the petitioners was upon the lot described in the deed of May 18, 1915, and described in the petitions. The judge found that there was due Bordier, the amount claimed in his petition and that he was entitled to maintain his lien to the extent of $521.20. He found that Mastracci did work on both houses to the value of $594, and established his lien to the extent of $581.03, including interest on both petitions to June 26, 1920. Interest runs from the date of the filing of the petition, Casey v. Weaver, 141 Mass. 280, and if there was any error in computing the amounts due the petitioners, the respondents were not harmed by it. Exceptions overruled. '