Mechanic's Lien. Practice, Civil, Verdict, New trial, Entry of judgment. Supreme Judicial Court. Judgment, Entry of.
R.L.c. 197, § 6, requiring for the preservation of a lien for labor or materials the filing of a sworn statement, provides that "if a lien is claimed for labor only performed or furnished under an entire contract which includes both labor and materials at an entire price, the contract price, the number of days of labor performed or furnished and the value of the same shall also be stated." A petition was filed for the enforcement of a lien for labor performed and furnished under a contract to do all the carpenter work upon a block of five houses for an entire price of $3,600. In stating the account and giving the items no mention was made of anything but labor. The value of lumber included in the contract was $36. The statement of the lien did not comply with the requirement of the provision of the statute above quoted by stating the number of days of labor and the value of the same. The petitioner contended that the amount of materials included in the contract was so small that it might be disregarded and the contract treated as one for labor alone. Held, that there was no foundation for this contention, and that the petition could not be maintained.
Under R.L.c. 197, § 3, no lien for materials can be established against the owner of real estate if the materials were furnished under a contract which was made with the person from whom he purchased the property before it was conveyed to him and no notice was given to him of an intention to claim a lien, although a part of the materials were furnished after he acquired the title.
Upon a petition to establish a lien for labor furnished in the construction of a building, the case was tried before a jury upon issues framed for them, upon which they found for the petitioner. The petition was for the enforcement of a lien for labor only, and by the evidence it appeared that the labor had been furnished under a contract which included both labor and materials at an entire price, and that the requirements of R.L.c. 197, § 6, as to a statement of the number of days of labor and the value of the same had not been complied with. The respondent moved for a new trial, which was granted by the judge. The respondent then asked the judge "upon all the evidence in the case" to find for the respondent. This motion the judge denied on the ground that he had no authority to grant it. Held, that the action of the judge was right, both in granting the new trial and in refusing to make a finding for the respondent; that the evidence on which the judge was asked to make the finding had been introduced upon the trial of issues before the jury, and, after their verdict, was not before the judge to be passed upon by him, and he could not assume that the petitioner would not desire and be able to introduce other evidence upon a new trial on the merits.
The provision of St. 1909, c. 236, § 1, that in a case before this court on an exception by a defendant to a refusal of a presiding judge to order a verdict for such defendant, this court, if the defendant's exception is sustained, may by rescript direct the entry in the trial court of judgment for the defendant, does not apply to a case which comes to this court not by a bill of exceptions but by a report of the presiding judge, although it appears by such report that the judge refused to order a verdict for the defendant and that the defendant excepted and that such refusal was erroneous and was held to be so by the presiding judge himself, who accordingly set aside the verdict and reported the case without providing in his report for a judgment for the defendant.
KNOWLTON, C.J.
This is a petition for the enforcement of a mechanic's lien. The only evidence introduced at the trial was the report of an auditor, and a copy of the petitioner's statement of the lien, filed in the registry of deeds. The uncontradicted evidence showed that the petitioner made a contract with the respondent Stewart to do all the carpenter work upon a block of five houses on the land described in this petition, except the laying of floors, and to furnish the lumber for the stair carriages, for an entire price of $3,600; that he performed this contract and did certain extra work, and that a balance upon the contract price and for the extra work is now due him. A statement of a claim of lien was seasonably filed, which, in stating the account and giving the items, made no mention of anything but labor. The agreed price of $3,600, which was given as one item, purported to be for labor, with no reference to materials. The account annexed to the petition for the enforcement of the lien, in like manner gives items of labor, but makes no reference to materials. The word "materials" occurs in only one place in the statement on file in the registry of deeds, and in three places in the petition. But neither the statement of claim nor the petition purports to be in substance for anything except the debt for the labor. The judge ruled that "the petitioner's statement is not sufficient to preserve a lien for materials," and that "the petition is not sufficient to enforce a lien for materials." The petitioner expressly assented to these rulings.
It is plain that neither the statement of the lien, nor the petition for the enforcement of a lien, nor the evidence, was enough to enable the petitioner to maintain a lien for labor alone, performed or furnished under a contract which includes both labor and materials at an entire price. To maintain a lien of this kind the contract price, and the number of days of labor performed or furnished, and the value of the same, must be stated and proved. R.L.c. 197, § 6. Gogin v. Walsh, 124 Mass. 516.
The auditor found that the value of the lumber included in the petitioner's original contract was $36, and the petitioner contends that this is so small an amount that it may be disregarded, and the contract treated as for labor alone. There is no foundation for this contention. The case of Mulrey v. Barrow, 11 Allen, 152, relied on by the petitioner, falls far short of sustaining it.
Certain issues were found for the petitioner by agreement of parties, and certain other issues were found for him by the decision of the jury, subject to exceptions of the respondent. Upon a motion for a new trial these last findings were set aside by the judge and a new trial was granted, upon the ground that the findings were erroneous as matter of law. For reasons already given, we are of opinion that the judge was right in this ruling, and that the findings were rightly set aside.
Before the case was submitted to the jury, the petitioner's attorney, in reply to a question by the court, said that he did not wish to amend his petition, and would stand on his petition as it was.
The evidence at the trial would not enable the petitioner to maintain a lien against the respondent Blanchard, to whom the real estate was conveyed while the contract was being performed. R.L.c. 197, § 3. So far as appears, the materials or a part of them were furnished after Blanchard acquired his title, and without notice to him of an intention to claim a lien, and no case was made out for the enforcement of a lien for labor and materials under an entire contract.
If the case had been submitted to the judge upon the evidence, for a ruling on the question whether findings were warranted that would entitle the petitioner to maintain his lien, he properly could have ruled in favor of the respondent. But the motion for a finding by the judge for the respondent, upon the evidence, after the trial, and after the verdict upon three issues had been set aside, stands differently. The case was not before the court for action of this kind. The evidence had been introduced upon a trial of issues before a jury. When the verdict was set aside, the petitioner was entitled to a new trial. If, upon a hearing before the judge on a motion, facts had been admitted which would warrant the judge in revoking the order framing issues, and in finding for the respondent, he might have dealt with the case in this way. But he could not, except by agreement of the petitioner, proceed to a final disposition of the case in this subsequent proceeding, on evidence which had been introduced at a previous stage in a trial before a jury. He could not assume that the petitioner might not desire to introduce other evidence upon a new trial on the merits. The ruling of the judge on this motion was right.
The respondent asks us to apply the St. 1909, c. 236, § 1, to this case. This section is as follows: "When, in the trial of a civil action, the presiding justice is requested to rule that upon all the evidence the plaintiff cannot recover, and such request is refused, and exception by the defendant to such refusal is duly taken, and a finding or verdict returned for the plaintiff, then if the defendant's said exception is sustained in the Supreme Judicial Court, and exceptions if any taken in said trial by the plaintiff are all overruled, the Supreme Judicial Court may, by rescript, direct the entry in the trial court of judgment for the defendant, and thereupon judgment shall so be entered." The request for a ruling, the refusal of the request, the exception to the refusal and the verdict of the jury were all within the language of the statute. The case does not come to this court upon a bill of exceptions, but upon a report of the presiding judge. The exception is not technically sustained, although the ruling excepted to is held to be erroneous, and was so held by the judge himself, who accordingly set aside the verdict and reported the case. We are of opinion that the case should be disposed of according to the terms of the report, which does not provide for a judgment for the respondent. We are of opinion that the statute does not apply to this case.
Case to stand for further hearing in the Superior Court.