Batchelder v. Rand

• Decision Date: 03 February 1875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James S. Batchelder v. Frederick S. Rand & others

117 Mass. 176

James S. Batchelder v. Frederick S. Rand & others

Supreme Court of Massachusetts

February 3, 1875

Argued November 11, 1874

Suffolk. Petition under the Gen. Sts. c. 150, to enforce a lien for labor performed and materials furnished, in the construction of two houses. Trial in the Superior Court before Rockwell, J., who, by the consent of the parties, before verdict, reported the case for the determination of this court, in substance, as follows:

It was agreed that the defendant Rand and one Henck acquired title to two lots of land, shown upon a plan of lots owned by the city of Boston, by separate deeds, one of which was a conveyance of lot A, on Sharon Street, and the other of lots D and E, on Harrison Avenue, bearing date December 12, 1871.

Henck and Rand made a written contract with the petitioner, on January 30, 1872, under which the petitioner performed the carpenter work, and furnished materials upon each of the two buildings erected upon the said lots of land, which buildings were not connected, but were entirely separate. The lots of land adjoined each other, as shown upon a plan, a copy of which is in the margin. ^[*] No fences, or other visible boundaries upon the land, separated the lots when the contract was made. After the date of the contract, Henck conveyed his interest in both the lots to Rand. The lots were also separately conveyed in mortgage to the several mortgagees, who were made respondents and appeared in answer to this petition.

It was agreed that the lots of land and the mortgages are correctly described in the petition; that the petitioner fulfilled the contract; that the last work was performed on the house on lot A, September 14, 1872, and the last work was performed on the other house, on lots D and E, October 4, 1872. A portion of the work for which the petitioner claims a lien was for extra work, performed under an oral contract made after the written contract. A certificate duly executed was filed in the clerk's office of the city of Boston, November 2, 1872, and the houses and land were properly described therein.

The petitioner offered evidence to show that the balance due to him, for all the work done and materials furnished, for both houses, under both the written and oral contract, had been agreed upon by him and Rand, and amounted to $ 1049.50; also evidence that the extra work on the two houses was fifty-one and one half days' work, worth $ 3.50 per day, of which twenty-four and one half days' work was performed on the Harrison Avenue house, an account of which was kept by the witness. No other evidence was offered as to the amount of work done, or upon which house it was performed. The foregoing evidence was admitted, subject to the exception of the respondents.

The presiding judge, upon these facts, ruled that the petition could not be maintained for the balance aforesaid, or any parts thereof. If the ruling was correct, judgment is to be entered for the respondents; but if the petitioner is entitled to recover, the case is to stand for a new trial.

Case to stand stand for trial.

D. C. Linscott, for the petitioner.

A. Russ, (H. L. Hazelton with him,) for the respondents.

Endicott, J. Wells & Devens, JJ., absent.

OPINION

Endicott, J.

It...