Angier v. Bay State Distilling Co.

• Decision Date: 02 March 1901
• Citation: 178 Mass. 163,59 N.E. 630
• Parties: ANGIER v. BAY STATE DISTILLING CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 163

59 N.E. 630

ANGIER v. BAY STATE DISTILLING CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1901

COUNSEL

Hollis R. Bailey, for petitioners.

Brandeis Dunbar & Nutter and Edw. F. McClennen, for respondent.

OPINION

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 Pub. St. 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 deed. 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. St. 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 90 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 Pub. St. 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, 49 N.E. 739, in which the petitioner took no measures to enforce his lien until after the expiration of 90 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; ...