Corbett v. Greenlaw

• Decision Date: 03 February 1875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Thomas Corbett v. Benjamin F. Greenlaw & others

117 Mass. 167

Thomas Corbett v. Benjamin F. Greenlaw & others

Supreme Court of Massachusetts

February 3, 1875

Argued November 17, 1874 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Petition to enforce a lien under the Gen. Sts. c. 150, for labor performed in the construction of a block of six buildings on five lots of land on Shawmut Avenue, in the city of Boston.

The petitioner's statement of account was filed in the clerk's office of said city on April 25, 1872, and contained the following items:

B. F. Greenlaw to Thomas Corbett, Dr.

April 12.

For laying 423,150 bricks at $ 6.50 per M

$ 2750.48

" 10,000 bats at $ 7.50 per M

75.00

For one half surveyor's fee

10.00

$ 2835.48

Credit by cash

1070.00

$ 1,765.48

The case was referred by the Superior Court to an auditor, under a rule directing him "to hear the parties, examine their vouchers and evidence, and to state the accounts, and make a report thereof to the court." The auditor found that the work was done under a contract with the defendant Greenlaw as hereinafter stated; that the number of bricks laid and the prices charged were correct; that it was admitted that the item of $ 10 was not a lien upon the land, but the defendant did not rely upon this as an objection; that the certificate was seasonably filed; that the books of the petitioner were very imperfectly kept, and were very unsatisfactory; that the petitioner was doing work for Greenlaw at Mount Pleasant, at the same time this work was going on, and that certain payments which had been made were credited to that work instead of to this as they should have been; that the true amount of credits was $ 1392.54, leaving a balance due the petitioner of $ 1532.94; and that the petitioner's statement though in fact untrue was not corruptly so, and that the misstatement did not deprive the petitioner of his lien.

Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows:

Upon the coming in of the auditor's report, and before the same was read to the jury, the respondents filed a motion in writing to recommit the report, or to strike out and not permit to go to the jury so much thereof as related to questions and matters not pertaining to the accounts, which motion the judge overruled.

The petitioner testified that the labor was performed and furnished under and in pursuance of a verbal contract which he made with Benjamin F. Greenlaw, one of the respondents, on November 6, 1871, by which contract he was to lay the bricks for the houses described in his petition, at $ 6.50 per thousand, two thirds of which was to be paid as the work progressed, and the remaining third in two months after the work was finished; that the work was commenced on November 23, 1871, and performed under the contract, all of which was conceded.

It also appeared that Stephen M. Allen was the owner of the said five lots of land up to November 9, 1871, on which day Allen conveyed the five lots to Greenlaw by warranty deed, and on the same day Greenlaw mortgaged the same premises back to Allen to secure the purchase money and sums of money in addition, to be by him advanced to Greenlaw for building purposes for the same, by six mortgage deeds, all dated November 9, 1871, which mortgages were recorded November 20, 1871. On November 9, Greenlaw also gave to the defendant, Floyd, six mortgages covering the said five lots subject to the Allen mortgages, which mortgages were recorded December 18, 1871, and nothing has been paid upon either of the mortgages. The petitioner did not claim to hold his lien against the Allen mortgages, but did against the Floyd mortgages. It appeared that the Floyd mortgages had been foreclosed, and the premises sold under them.

The petitioner offered in evidence the auditor's report, the respondents objected to the portions of the report relating to the time of the petitioner's ceasing to labor or furnish labor, and that portion which relates to petitioner's failure to give all just credits, being done wilfully, and knowingly and corruptly, and his finding that the misstatement does not deprive the petitioner of his lien, and all other portions of the report not relating to the account between the parties, or in explanation thereof; but the judge overruled the objection, and permitted the whole report to be read to the jury.

The respondents put in evidence tending to prove that Allen had made a contract with Greenlaw to advance the money to pay for the labor in constructing the houses, and was so advancing, which fact was known to the petitioner, and that at one time the petitioner came to him and complained that Greenlaw did not pay him, and wanted to know of him, Allen about his advancing any more money; that he told the petitioner that he had made arrangements to advance $ 250 towards paying the labor the next Saturday night, and that he would withhold that, and pay it to the petitioner; that the petitioner replied, "No, pay it to Greenlaw," and that he did pay it to Greenlaw on that Saturday night. The petitioner testified that Greenlaw did not pay it to him, and he did not allow it as a credit.

The respondents also put in evidence tending to show that the petitioner ceased to labor or furnish labor on the buildings more than thirty days before the filing of his certificate in the city clerk's office, and also that he had been paid large sums of money for which he had given no credit in his statement of account, so filed in the clerk's office, and there was not due him the sum that he claimed.

The respondents requested the judge to instruct the jury as follows:

"1. That the auditor's report was not prima facie evidence as to the time when the petitioner ceased to labor or furnish labor upon said buildings, nor as to whether his failure to give all just credits in the statement of the account filed with the city clerk was done wilfully and knowingly, or corruptly, and as to the finding that the misstatement does not deprive the petitioner of his lien and as to all other matters therein contained, not relating to the statement of the account between the parties or in explanation thereof. 2. That if they find that the work was performed by virtue of a contract made with Greenlaw, before he received a deed of the land, the petitioner is not entitled to maintain this petition; that he had no lien upon the premises for the labor so performed or furnished. 3. That if the petitioner knowingly omitted from the credits given in his statement of accounts, filed in the city clerk's office, moneys which he had received from Greenlaw on account of this work, they will be justified in finding that he wilfully and knowingly claimed more than was his due. 4. That if the jury find that Allen paid the $ 250 to Greenlaw, under the circumstances and in the manner testified to by Allen it should be allowed by Corbett as a credit for the work, and deducted from the claim."

The judge declined to instruct the jury as requested, and submitted to them the three following questions, to be by them specially answered, viz.:

"1. Did the petitioner perform or furnish any labor under his alleged contract, within thirty days previous to and including April 25, 1872?" The jury answered, "Yes."

"2. What is the amount which should be credited by the petitioner, as paid or received by him under his said contract?" The jury answered, "$ 1342.54."

"3. Did the petitioner wilfully and knowingly claim more than was his due in his certificate?" The jury answered, "No."

The judge ruled that all the other questions raised were questions of law to be determined by the court, after the verdict of the jury answering these questions; and instructed the jury that the auditor's report was prima facie evidence upon all the questions upon which he had passed, as well as those relating to the time of ceasing the labor, and whether the credits were knowingly and wilfully omitted, and other matters not relating to the statement of the accounts, as upon the finding and statement of the account between the parties, and upon the third request ruled and instructed the jury, that if the petitioner knowingly omitted, from the credits given in his statement of accounts filed in the city clerk's office, moneys which he had received from Greenlaw on account of this work, the jury would be authorized to consider this fact as bearing upon the question whether he wilfully claimed more than was his due: and also that if the $ 250 was due from Allen to the petitioner and the petitioner told him to pay it to Greenlaw, it should be allowed; but if Allen owed it to Greenlaw and could not pay it to Corbett, without Greenlaw's order, then it should not be charged to Corbett, and the jury should disallow the same.

To the admission of the said testimony against the respondents' objection, and the refusals of the judge to rule and instruct the jury as requested, and to the rulings given, the respondents alleged exceptions.

After the return of the verdict of the jury, the petitioner moved for a judgment and order of sale of the premises, and the respondents contended that under the said facts the...