Mechanic's Lien. Contract. At the hearing upon a petition under R.L.c. 197, to enforce a mechanic's lien it appeared that the contract price for the work which the petitioner was to do including labor and materials was a round sum of $200. The jury found that the petitioner did not fully perform his contract, that by reason of this failure $25 should be deducted from the contract price, and that the value of the labor and material furnished was $175. Held, that these findings were consistent with a finding that the petitioner attempted in good faith to perform his contract and substantially performed it, and that, the petitioner having received already $50 on account, an order of the presiding judge that the lien be established for the sum of $125 should be sustained.
KNOWLTON, C.J.
This is a petition to enforce a mechanic's lien. The contract price for the work which the petitioner was to do, which included labor and materials, was $200. Four issues were submitted tothe jury, on which they returned a verdict saying that the petitioner did not fully perform his contract, that $25 should be deducted from the contract price by reason of his failure fully to perform it, and that the value of the labor performed and furnished and of the materials furnished by the petitioner was $175. These findings are entirely consistent with the finding that the petitioner attempted in good faith to perform his contract, and substantially performed it. In McCue v. Whitwell, 156 Mass. 205, 207, which was a petition to enforce a mechanic's lien, this court said, "There are other cases where a builder may recover, under a contract to erect or repair a building on real estate, without showing complete performance of his contract. If he has acted in good faith in an effort to perform it, and has substantially, although not fully, performed it, he may recover the contract price, less such deduction as should be made on account of the errors or omissions in doing the work." This is an application of a rule of the common law to suits for the enforcement of mechanics' liens.
The evidence is not reported, and the bill of exceptions contains but a brief statement of facts. At the hearing before the judge, the respondent made a request for a ruling which assumed conditions in regard to the evidence, some of which do not appear in the bill of exceptions. There was nothing in the case to preclude the judge from finding that the petitioner, in good faith, attempted to perform the contract, and accomplished a substantial, although not a complete, performance of it.
Exceptions overruled.
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