Bowen v. Phinney

Citation162 Mass. 593,39 N.E. 283
PartiesBOWEN et al. v. PHINNEY.
Decision Date03 January 1895
CourtUnited States State Supreme Judicial Court of Massachusetts
COUNSEL

James

L. Powers, for plaintiffs.

Hesseltine & Hesseltine, for defendant.

OPINION

HOLMES J.

Our statute gives an immediate lien to one who has performed labor in the repair of a building by the consent of its owner. Pub.St. c. 191, § 1. [1] Even if he is employed by a contractor, the laborer's lien is not by way of subrogation, and does not depend upon the terms of the contract, or the state of the account between his employer and the owner of the land. See Parker v. Bell, 7 Gray, 429; Atwood v. Williams, 40 Me 409; Laird v. Moonan, 32 Minn. 358, 361, 20 N.W 354; Railroad Co. v. Miller, 80 Va. 821, 831; Mallory v. La Crosse Abattoir Co., 80 Wis. 170, 49 N.W. 1071; Wright v. Pohls, 83 Wis. 560, 563, 53 N.W. 848; 2 Jones, Liens (2d Ed.) § 1304.

There are statutes of a different type in other states, but the books cited are enough to show that ours is a familiar form of legislation. The provision in section 2 [2]has nothing to do with the case. By that section, when the agreement is for labor and materials, a lien is allowed for the labor for a sum not greater than the price for the entire contract. The contract referred to there, as also in Moore v Erickson, 158 Mass. 71, 73, 32 N.E. 1031, is the contract of the party claiming the lien, not a superior contract; and the purpose of the section merely is to save a lien for labor when the party has none for materials. We have no statute limiting the liability of the owner to the price stipulated in the contract with him, as in Wright v. Pohls, 83 Wis. 560, 53 N.W. 848; Morehouse v. Moulding, 74 Ill. 322; and the like. It follows that the facts offered to be proved would not be a defense.

Exceptions overruled.

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Notes:

[1] Pub.St. c. 191, § 1, provides that "any person to whom a debt is due for labor performed or materials actually used *** in the repair of a building *** by virtue of an agreement with or by consent of the owner of such building or of any person having authority from *** such owner *** shall have a lien on such building *** to secure the payment of the debt. ***"

[2] Section 2 provides that in case the labor and materials are furnished under an entire contract, a lien for the labor may be enforced on proof of what it is worth but in no case shall such lien be enforced for a greater amount...

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  • Becker v. Hopper
    • United States
    • Wyoming Supreme Court
    • January 27, 1914
    ... ... I. 699, 19 A. 323; Spokane M. & L ... Co. v. McChesney, (Wash.) 21 P. 198; Hightower v ... Bailey, 108 Ky. 198, 56 S.W. 147; Bowen v ... Phinney, 162 Mass. 593, 39 N.E. 283; Spofford v ... True, 33 Me. 283; Mallory v. LaCrosse Co., 80 ... Wis. 170, 49 N.W. 1071; Henry ... ...
  • Hartford Accident & Indemnity Co. v. Natchez Inv. Co
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    • Mississippi Supreme Court
    • December 3, 1928
    ... ... 358, 20 N.W. 354; ... Mallory v. La. Crosse Abattoir Co., 80 Wis. 170, 49 ... N.W. 1071; Donahy v, Clapp, 12 Gush. 440; Bowman v ... Phinney. 162 Mass. 593, 39 N.W. 283; Cole Mfg. Co, ... v. Falls, 90 Tenn. 466, 16 S.W. 1043; Colter v ... Frese, 45 Ind. 96; Atwood v. Walsham, 16 ... ...
  • Great Southern Fire Proof Hotel Company v. Benjamin Jones
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    • U.S. Supreme Court
    • April 4, 1904
    ...257, 23 L. ed. 321; Blauvelt v. Woodworth, 31 N. Y. 285; Glacius v. Black, 67 N. Y. 563; Donahy v. Clapp, 12 Cush. 440; Bowen v. Phinney, 162 Mass. 593, 39 N. E. 283; White v. Miller, 18 Pa. 52; Spofford v. True, 33 Me. 283, 54 Am. Dec. 621; Paine v. Tillinghast, 52 Conn. 532; Treusch v. Sh......
  • Allis-Chalmers Co. v. Central Trust Co. of New York
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 22, 1911
    ... ... Savoy v. Dudley, 168 Mass. 538, 47 N.E. 424; ... Batchelder v. Hutchinson, 161 Mass. 462, 37 N.E ... 452; Bowen v. Phinney, 162 Mass. 593, 39 N.E. 283, ... 44 Am.St.Rep. 391; Friedman v. Hampden, 204 Mass ... 494, 504, 90 N.E. 851. Neither can the words of ... ...
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