Turner v. Wentworth

Upon the trial of a petition to enforce a mechanic’s lien, the question whether the certificate required by the Gen. Sts. c. 150, was filed within thirty days after the work was completed or materials furnished under the contract, or whether work was done within the thirty days colorably, for the purpose of reviving the lien, is a question of fact, upon which the finding of the judge, who tries the case without a jury, is final. On the trial of a petition to enforce a mechanic’s lien, the question whether labor was performed and materials furnished by the petitioner upon each of three houses in a block under an entire contract, or under separate contracts, is a question of fact, upon which the finding of the judge, who tries the case without a jury, is final. On the trial of a petition to enforce a mechanic’s lien, the petitioner claimed a lien for furnaces and ranges furnished by him. The judge who tried the case without a jury found that the petitioner was entitled to the lien Held, that the question was one of mixed fact and law: that if the transaction between the petitioner and the owner of the buildings was merely a sale of the furnaces and ranges as personal property, there would be no lien ; but if by the contract the furnaces and ranges were to be furnished as parts of the houses, and they were in fact so applied, there would be a lien; and that, it not appearing that the judge erred in applying these principles of law, exceptions alleged to his finding could not be sustained.

Petition to enforce a lien under the Gen. Sts. c. 150, for labor performed and materials furnished, in the construction of a block of three houses in Boston. Trial in the Superior Court, before Putnam, J., without a jury, who allowed a bill of exceptions in substance as follows: The petitioners were dealers in furnaces and ranges. The re-pondent Wentworth was the owner of the land, and the builder of the three houses in a block in Clarendon Street, in Boston. In February, 1870, the petitioners contracted orally with Went-worth to furnish three portable furnaces, pipes and registers, com» píete, and three ranges, with utensils complete, one for each house, for the price of $285 for each house. Wentworth was to furnish brick, and do the carpenter and mason work necessary in putting in materials furnished by the petitioners. These furnaces were those usually known as portable furnaces, and were delivered at the houses by the petitioners, the builder constructing the brick work or base on which each was set. The evidence was that each furnace was set in mortar upon the brick work, with an air-chamber between the furnace and the foundation, in such a way that it could not be removed without disturbing or breaking the connection. With the exception of what the petitioners did on March 15, following, hereinafter referred to, said furnaces and ranges had been put into the houses; and some extra work occasioned by changes ordered by the builder was done on or before June 8, 1870; and the charges were made therefor on June 8, by the petitioners. On March 15, 1871, one of the houses being occupied by a tenant, and the other respondents having taken mortgages, as set forth in the petition, which were all recorded August 19, 1870, the petitioners were requested by Wentworth to complete the jobs, and accordingly sent two or three metallic registers for the furnace in each of said houses, and the pots, kettles and other utensils for each of said ranges, together with the lids thereof, also four or five short pieces of tin hot-air pipe, to be connected with the furnaces. As originally contemplated, the metallic registers were to rest horizontally in stones set in the floor; but, by the changes made on or before June 8, at Wentworth’s request, one of these stones in each house was transferred to a partition,, and set in an upright position. No charge was made for this change, the petitioners testifying that Wentworth had a right to have such changes made. When the registers were carried there on March 15, it became necessary to drill holes in the stones set-in the partition, and to insert some screws to retain the registers in their places. This work was done on that day. In the house occupied by the tenant, two registers only were furnished, and the work of setting a register in an upright stone, as before described, by drilling holes and inserting screws, was all the work done in that house on that day, except that of leaving the uten ails for the range The certificate of a lien was filed on April 14, 1871. At the hearing, the original petition appeared to have been lost, and could not be found, and the hearing proceeded against the respondents’ exceptions, upon a certified copy, the judge reserving the rights of the respondents. The respondents contended: “ 1. That the materials furnished and work performed by the petitioners were completed on June 8, 1870, as represented in their several bills of particulars, and that the petitioners were bound by their representations in said bills of particulars, and estopped thereby to claim for what was done in March following. “ 2. That the materials furnished, and labor performed in connection therewith, did not come within the provisions of the Gen Sts. c. 150. “ 3. That what was done on March 15,1871, the thirtieth day preceding the filing of the certificate of lien, could not be regarded as ceasing to labor on or furnish materials for a building or structure within the provisions of § 5 of said statute. “ 4. That as the contract was to furnish certain articles at a specified price for each of the several houses, as set forth in each of three bills of particulars, the prayer of the petition ‘ that all the land and buildings may be sold,’ could not be granted.” “ 5. That no decree or order could be made in the absence of the original petition.” Upon the issues of fact and of law, the findings of the judge were as follows: “1. That the petitioners furnished both labor and materials upon all of the houses in question, as late as the 15th of March, 1871, and so that the certificate was seasonably filed, and the action seasonably brought. “ 2. That the contract was entire and indivisible to do work and furnish materials upon an entire estate, that is, upon the block of three houses, at $285 per house, and that the lien attaches to the whole estate. “ 3. That the mortgagees take their title subject to the lien. “ 4. That the furnaces and ranges were fixtures, and so that the petitioners are entitled to their lien. “ 5. That the petitioners are entitled to establish their lien, and said lien is established for the sum of $805.95 and interest from the date of filing of the petition.” To the foregoing rulings, opinions and findings as matter of law, the respondents alleged exceptions.