ANGIER v. BAY STATE DISTILLING CO

Asbestos and magnesia covering placed around steam piping in a distillery, intended as a permanent covering for the metal, may be found to be furnished in the erection of a building within the meaning of Pub. Sts. c. 191, § 1, in regard to mechanics' liens.

A petitioner under Pub. Sts. c. 191, in regard to mechanics' liens, does not waive his lien by bringing an action at law for his debt and attaching the real estate against which he is seeking to enforce his lien.

Pub. Sts. c. 191, § 9, requires a suit to enforce a mechanic's lien to be begun within ninety days after the petitioner has ceased to labor on or furnish labor or materials for the building. A. filed within the required ninety days a petition to enforce a lien. B. did the same. A. after the expiration of the ninety days filed an intervening petition in the suit of B. Later B. discontinued his petition. Held, that A. had not lost his lien by failing to file his intervening petition within ninety days from the time he had ceased to labor, and could enforce his lien under his intervening petition in the suit begun by B.

When a round price is to be paid for labor and materials, for a part of which the law gives a lien and for another part of which there can be no lien, and there is no way of determining how much is of one kind and how much of the other, no lien can be enforced.

In a suit to enforce a mechanic's lien for labor and materials furnished for a building standing on two lots, the petition described only the front lot and the portion of the building standing thereon. The back lot did not belong to the respondent who made the contract under which the lien was claimed. The contract provided for the payment of a gross sum for certain labor and materials to be furnished for the whole building without distinguishing between the part of the building described in the petition and the part on the back lot. Certain other labor and materials were to be paid for by the piece, but there was no way of determining what proportion of the piece work was done on one part of the building and what on the other. Held, that on these facts no lien could be established. Batchelder v. Hutchinson, 161 Mass. 462, distinguished.

KNOWLTON, J.

1. The judge was well warranted in finding that the labor and materials furnished by the intervening petitioners, Burnham and Page, were furnished in the erection of a building, within the meaning of the Pub. Sts. c. 191, § 1. The still and pipes on which the covering was placed were a part of the building, and the material which the petitioners put on was intended as a permanent covering for the metal. Although it was possible to remove it, the removal would greatly injure it, and it was procured to be retained as long as the pipes remained.

2. The petitioners did not waive their lien by bringing an action at law and attaching the real estate. There was no such change in the situation as when a mortgagee of personal property attaches it, and directs the officer to take possession of it and to hold it as security for a judgment to be recovered on the mortgage debt. See Evans v. Warren, 122 Mass. 303. Nor was the attachment like a levy by a mortgagee upon the real estate conveyed by a mortgage, under a judgment and execution obtained in a suit on the mortgage debt. See Atkins v. Sawyer, 1 Pick. 351. The effect of such a levy would be to obtain an absolute title to the mortgaged real estate, without allowing the time for redemption secured to the mortgagor by the statute. Pub. Sts. c. 191, § 46, expressly saves to one having a lien of this kind a right to maintain an action at common law for his debt.

3. The judge rightly ruled that the petitioners had not lost their lien by the failure to file the intervening petition within ninety days of the time when they ceased to labor. They seasonably filed their certificate claiming a lien, and then in due time they filed a petition to enforce their lien. Afterwards George M. Angier having filed a petition to enforce a lien for himself, in which he set forth the proceedings previously taken by these petitioners, the petitioners, under the Pub. Sts. c. 191, §§ 16, 19, filed this intervening petition in the suit commenced by Angier, and thereupon their rights to be heard in this case were properly secured, and the subsequent discontinuance of Angier's petition did not affect their claim. The case is not like Davis v. Arthur, 170 Mass. 449, in which the petitioner took no measures to enforce his lien until after the expiration of ninety days from the time when he ceased to furnish labor.

4. In one particular there was error at the trial. A large part of the labor and materials were purchased under an entire contract for a round sum, which included that put on that part of the building which stands on the land described in the petition, and that which was put on another part of the building that stands on the land of another person. Other labor and materials which, in like manner, were put in part on one portion of the building and in part on the other, were to be paid for by the piece, but there was no means of determining what proportion of this was on the one portion of the building and what on the other. It is settled that when a round price is to be paid for labor and materials, for a part of which the law gives a lien, and for another part of which there can be no lien, and there is no way of determining how much is of one kind and how much of the other, no lien can be enforced for either. Jones v. Keen, 115 Mass. 170. Foster v. Cox, 123 Mass. 45. Mulrey v. Barrow, 11 Allen, 152. McGuinness v. Boyle, 123 Mass. 570. Childs v. Anderson, 128 Mass. 108. Morrison v. Minot, 5 Allen, 403. Felton v. Minot, 7 Allen, 412. Clark v. Kingsley, 8 Allen, 543. Graves v. Bemis, 8 Allen, 573. Driscoll v. Hill, 11 Allen, 154. This rule applies to the present case. The case of Batchelder v. Hutchinson, 161 Mass. 462, cited by the petitioners, is not inconsistent with this rule. In that case there was no agreed price, but the claim was on a quantum meruit for labor. A small portion of the building extended beyond the land of the respondents, on land of an adjacent owner. The petitioners were entitled to a lien for so much labor as was done on that part of the building which stood on the respondents' land. The judge found as a fact that a certain amount in value of the labor was upon that part of the building which stood on the respondents' land. There was no occasion for an apportionment, or a determination of proportions, under an entire contract for a round sum, but simply the question how much of the labor charged in the items by the defendant was performed on the respondents' premises. The presiding judge, having made a finding on this question, this court followed the finding, it not appearing clearly that there was no evidence on which the finding could be made. In the present case it is manifest from the facts stated that there was no way of making an apportionment between different parts of the building under the entire contract. It also seems that there was no way of showing what part of the work to be paid for by the piece was done on one portion of the building and what part on the other.

The doctrine stated in McCue v. Whitwell, 156 Mass. 205, and in Moore v. Erickson, 158 Mass. 71, 73, has no application to the present case. The principle there stated was, that when, by reason of the failure fully to perform his contract, a builder cannot recover the contract price for erecting a structure on real estate, but may recover on a quantum meruit for labor and materials at the rate to be paid under the contract, he may enforce the lien for the amount to which he is entitled, if he could have enforced a lien for the contract price had the contract been fully performed. It follows that the finding must be set aside.

It is agreed that two of the items of work to be paid for by the piece represent labor and materials on the respondents' premises. For these items, amounting to $55.80 and interest, the lien should be established.

Exceptions sustained.