Cole v. Clark

• Court: Maine Supreme Court
• Writing for the Court: WHITEHOUSE, J.
• Citation: Cole v. Clark, 85 Me. 336, 27 A. 186, 21 L.R.A. 714 (Me. 1893)
• Decision Date: 27 February 1893
• Parties: COLE v. CLARK.

27 A. 186

85 Me. 336

COLE

v. CLARK.

Supreme Judicial Court of Maine.

Feb. 27, 1893.

(Official.)

Action by Ernest L. Cole against John E. Clark to enforce a mechanic's lien. Heard on an agreed statement of facts Personal judgment for plaintiff.

Deasy & Higgins, for plaintiff.

J. A. Peters, Jr., for owners.

WHITEHOUSE, J. The defendant, Clark, built the "King Cottage" under a contract with the owners. The plaintiff worked in his employment in erecting it, and brings this suit to enforce a lien on the building to secure the payment of a balance of $123.27 for labor performed between February 15th and August 4th, and "one-half hour's labor" alleged to have been performed on or about August 24, 1891. The statute provides that the lien shall be dissolved unless the claimant files in the office of the town clerk a true statement of the amount due within 30 days after he ceases to labor. The plamtiff claims that he complied with this requirement, and preserved his lien by filing such statement on the 12th day of September, 1891. The owners, who appear in defense, claim that he "ceased to labor" on their cottage on the 4th day of August, They therefore contend that his statement was not seasonably filed in the clerk's office, and that his lien was accordingly dissolved. This is the only question presented for the determination of the court it is not in controversy that the plaintiff ceased to labor on the King cottage August 4th, unless the incident of August 24th, hereafter described, can reasonably be deemed labor on that day, within the meaning of the statute.

The plaintiff was discharged from the work on the cottage and removed his chest of tools August 4th, and a few days after, prior to August 24th, a bill of his time on the cottage was rendered to Clark by the foreman with the plaintiff's knowledge. The plaintiff was never engaged in or about the cottage at work again, but remained in Clark's employment in the workshop, three-fourths of a mile distant, and performed such work as was there assigned him. On the 24th of August, the foreman, Mr. Lawrence, had occasion to place some moulding between two piers at the cottage, a piece of extra work not called for by the contract. The labor alleged to have been performed at that time is thereupon described as follows in the agreed statement:

"Not. having the necessary material on the ground, Lawrence went to Clark's shop to prepare it At the time he arrived there, Cole was around the stable, doing nothing, it being the noon hour. Cole's tool chest was in the shop over the stable. When Lawrence went up to the shop over the stable at about 1 o'clock, Cole followed of his own accord. In the shop Lawrence asked Cole for the loan of his tools, with which to prepare a moulding. Cole complied with that request, and took his 'hollows' and 'rounds' from his chest, near which was the bench. Some lumber being stored on the rafters overhead in the shop, Lawrence swung himself onto the rafters and lumber thereon, and selected a board, and, instead of dropping it, he passed the board down between the rafters, and Cole, who was underneath, took the end nearest him, and laid the board on two wooden horses or benches near by. Lawrence lowered himself down, and began work on the board, and made of it a moulding, which was used as aforesaid. Cole did nothing further, except to receive back his tools when Lawrence was through. When Lawrence began his work on the board, Cole began filing a saw for himself. He worked the rest of the half day for Mr. Clark on another job. Nothing was said by either Cole or Lawrence about any charge being made for the above by Cole. Cole himself keeps a book in...