Di Pietro v. Modes

• Decision Date: 21 November 1924
• Citation: 126 A. 575
• Parties: DI PIETRO v. MODES.
• Court: Maine Supreme Court

126 A. 575

DI PIETRO

v. MODES.

Supreme Judicial Court of Maine.

Nov. 21, 1924.

Appeal from Supreme Judicial Court, Cumberland County, in Equity.

Bill by Leo Dl Pietro against Abraham Modes to enforce a mechanic's Hen. From a decree for plaintiff, defendant appeals. Appeal dismissed.

Argued before CORNISH, C. J., and PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

Clinton C. Palmer, of Portland, for appellant.

Frank P. Preti, of Portland, for appellee.

WILSON, J. A bill in equity to enforce a mechanic's lien. It comes before this court on appeal by defendant. No copy of the evidence has been transmitted to this court. The appeal must therefore be dismissed in accordance with the well-established rules of equity practice. Emery v. Bradley, SS Me. 357, 34 A. 167; Redman v. Hurley, 89 Me. 428, 36 A. 906; Caverly v. Small, 119 Me. 291, 111 A. 300.

If the evidence had been transmitted, the appeal could not have been sustained. The chief ground of the appeal appears to be that the court below allowed two amendments over defendant's objection setting forth in greater particularity the contracts under which plaintiff's right to a lien on defendant's land and building arose.

Neither amendment, as we view it, was necessary, unless upon demurrer for lack of certainty in the bill, and their allowance did not injure the defendant.

The defendant's main contention appears to be that the bill only seeks to obtain a lien for labor and materials furnished under a single and written contract, while the amendments set forth a claim for an additional lien under a separate and oral contract, and therefore introduced a new cause of action.

It is true that the bill in the first paragraph sets forth that "by virtue of a contract" with the defendant, who is the owner of the premises, the plaintiff furnished certain material and performed certain labor. This, however, is the common form of allegation to conform to section 35 of chapter 96, R. S., in order that it may appear whether the materials furnished and work done was by virtue of a contract with or by consent of the owner, or if not, whether section 31 of said chapter 96 had been complied with. It does no more in this instance than set forth that the contractual relations under which the materials and labor were furnished were direct with the owner of the premises. Whether under one contract or two is immaterial on this point.

It is paragraph 2 of the plaintiff's bill and the account annexed, therein...