E. Corey & Co. v. H. P. Cummings Const. Co.

• Decision Date: 28 January 1919
• Citation: 118 Me. 34,105 A. 405
• Parties: E. COREY & CO. v. H. P. CUMMINGS CONST. CO. et al.
• Court: Maine Supreme Court

105 A. 405

118 Me. 34

E. COREY & CO.

v. H. P. CUMMINGS CONST. CO. et al.

Supreme Judicial Court of Maine.

Jan. 28, 1919.

Report from Supreme Judicial Court, Oxford County, in Equity.

Suit by E. Corey & Co. against the H. P. Curnmings Construction Company and others. Case reported from Supreme Judicial Court on a stipulation and agreed facts. Bill dismissed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBUOOK, DUNN, and MORRILL, JJ.

Clement F. Robinson and Arthur L. Robinson, both of Portland, for plaintiff.

George F. Gould, of Portland, for defendants Fletcher & Crowell Co. and Skellen.

Drummond & Drummond, of Portland, for defendants Maine Coated Paper Co. and Rumford Falls Power Co.

William H. Gulliver, of Portland, for defendant H. P. Cummings Const. Co.

MORRILL, J. The plaintiff claims to establish a lien on the land of Rumford Falls Power Company and the buildings thereon occupied by Maine Coated Paper Company, for materials used in the construction of an addition to the mill of the latter corporation, furnished to Fletcher & Crowell Company, a subcontractor under H. P. Cummings Construction Company, the general contractor for the entire work. The case is reported upon a stipulation and agreed statement of facts.

On the 8th day of August, 1913, Rumford Falls Power Company leased to Maine Coated Paper Company the land described in the bill for a term of 25 years from the 1st day of August, 1913, with an option to purchase the same, which has not been exercised by the lessee.

Later (the exact date does not appear) Maine Coated Paper Company erected a mill on the leased premises, and on the 27th day of April 1916, made a contract with H. P. Cummings Construction Company to "do and perform all the work and provide all the materials required" in building an addition adjoining and attaching to the present building of the Maine Coated Paper Company. This contract was made "with the actual knowledge and consent of the Rumford Falls Power Company."

By correspondence between April 24, 1916, and June 7, 1916, both inclusive, H. P. Cummings Construction Company made a contract or contracts with Fletcher & Crowell Company to furnish certain portions of the iron and steel materials for installation in said building under construction.

By correspondence and personal interviews between May 9, 1916, and June 7, 1916, both inclusive, Fletcher & Crowell Company, with the actual knowledge and consent of H. P. Cummings Construction Company, contracted with E. Corey & Co. for certain of the materials which, as E. Corey & Co. knew, were for the building then in process of construction at Rumford under the contract between H. P. Cummings Construction Company and Maine Coated Paper Company. The material so contracted for was actually furnished and delivered by E. Corey & Co. at the forge shop in Portland of Fletcher & Crowell Company between May 29, 1916, and June 22, 1916, both inclusive, as H. P. Cummings Construction Company at the time actually knew. The agreed price therefor was $1,654.05. All of the material so delivered by E. Corey & Co. at the forge shop of Fletcher & Crowell Company was delivered and received for the purpose of being shipped to Rumford for incorporation into the building there under construction as aforesaid, "after the material should have been painted, put together, drilled with holes, bolted, welded, or otherwise worked into the shape and condition necessary for meeting the requirements of the building contract in so far as the materials in the shape in which they were supplied by E. Corey & Co. were not already in such necessary shape and condition"; but E. Corey & Co. had no control whatever over the disposition of said material after it was delivered to Fletcher & Crowell Company.

Certain portions of the material supplied by E. Corey & Co. and delivered to Fletcher & Crowell Company at their shop in Portland were actually incorporated and used in erecting, constructing, altering, and repairing the building and appurtenances then being erected on the leased premises by H. P. Cummings Construction Company under its contract with Maine Coated Paper Company, after having been, as hereinbefore stated, painted, welded, bolted, drilled with holes, and otherwise worked into the shape and condition necessary for meeting the requirements of the building contract of H. P. Cummings Construction Company. The value of such material at the original contract prices between Fletcher & Crowell Company and E. Corey & Co. was $1,530.90.

The Rumford Falls Power Company had no actual knowledge that Fletcher & Crowell Company were furnishing materials in the erection of said building for Maine Coated Paper Company, but knew that a contract had been entered into between Maine Coated Paper Company and H. P. Cummings Construction Company, and that said building was being erected, and the materials required by the contract for its erection were being furnished and installed.

The claim of a lien upon the interest of Rumford Falls Power Company in the leased premises cannot be sustained. The lease contained an express provision that the building "shall remain and be personalty and not become a part of the realty, and that the said lessee, its successors or assigns, may enter and remove the same from said premises at the expiration of this lease." The lessor did not participate in the improvement, nor was it to reap any ultimate benefit therefrom it was not an affirmative factor in procuring the erection of the addition to the then existing mill. As long as the Maine Coated Paper Company observed the conditions and terms of the lease, and particularly the condition that it should "never occupy or use said premises, or any part thereof, for any purpose other than those in which it is authorized under its certificate of organization to engage," the lessor could not prevent the erection of the addition, and therefore cannot be said to have given or withheld its consent; and its interest cannot be charged with the lien claimed by plaintiff (2 Jones on Liens, §§ 1275, 1276; Francis v. Sayles, 101 Mass. 435; Rice v. Culver, 172 X. Y. 60, 65, 64 N. E. 761), although, as the case states, the general contract for erecting the building was made with the actual knowledge and consent of the lessor. In such a case consent amounts only to acquiescence in that which the lessor could not prevent.

"Consent within the meaning of the statute, means something more than acquiescence. It implies an agreement to that which could not exist without such consent." 2 Jones on Liens, § 1253; Hanson v. News Publishing Co., 67 Me. 99, 103, 53 Atl. 990; De Klyn v. Gould, 165 N. Y. 282, 59 N. E. 95, 80 Am. St. Rep. 719.

This case is clearly distinguishable from cases like Baker v. Waldron, 92 Me. 17, 42 Atl. 225, 69 Am. St. Rep. 483; Borden v. Mercer, 163 Mass. 7, 39 N. E. 413; Burkitt v. Harper, 79 N. Y. 273; Otis v. Dodd, 90 N. Y. 336.

We pass also without discussion, and without expressing any opinion thereon, the point which has been exhaustively argued, whether the materials were furnished by E. Corey & Co. in erecting, altering, or repairing the building. See Monroe v. Clark, 107 Me. 134, 77 Atl. 696, 30 L. R. A. (N. S.) 82; Boston Furnace Co. v. Dimock, 158 Mass. 552, 33 N. E. 647; Scannell v. Hub Brewing Co., 178 Mass. 288, 59 N. E. 628.

It is incumbent upon the plaintiff to show that the materials for which he would establish a lien were furnished "by virtue of a contract with or by consent of the owner." The word "owner" is comprehensive enough to include the owner of a leasehold estate. 2 Jones on Liens, § 1272.

It is not claimed that the plaintiff had a contract with Maine Coated Paper Company; its contract was with Fletcher & Crowell Company, a subcontractor under the general contractor for the entire work, H. P. Curamings Construction Company. It is agreed that—

"Maine Coated Paper Company had no actual knowledge that Fletcher & Crowell Company were furnishing the materials which were furnished by Fletcher & Crowell Company for the building, nor did it have actual knowledge that E. Corey & Co. furnished these materials to Fletcher & Crowell Company."

The single question then is: Can the consent of Maine Coated Paper Company to the...