Donnelly v. Butler

• Decision Date: 22 October 1913
• Parties: DONNELLY v. BUTLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 41

102 N.E. 917

DONNELLY v. BUTLER et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 22, 1913

COUNSEL

M. B. Houlihan and Jas. H. Loomis, both of Chicopee, for petitioner.

Harlan P. Small, of Springfield, for respondents.

OPINION

BRALEY J.

The petitioner's agreement made with the principal contractor rightfully acting for the respondent Butler the owner of the premises, called for the furnishing of the labor and materials necessary for the plumbing, heating, and piping of the building for gas and water, at an entire price. No notice having been given to the owner as provided by R. L. c. 197, § 3, a lien for materials did not attach, and the petitioner having substantially completed his part of the work, as found by the auditor, seeks to enforce a lien for labor only under section 2. A mechanic's lien being a creature of statute compliance with the prescribed requirements must be shown. By section 6 the statement must set forth the number of days of labor performed or furnished. The only item it for 'labor from July 9 to December 17, 1909,' and upon its face the statement was defective. Patrick v. Smith, 120 Mass. 510; Sexton v. Weaver, 141 Mass. 273, 6 N.E. 367; Martin v. Stewart, 208 Mass. 583, 95 N.E. 212. Under section 1, a right to have a lien attaches at the time the work is done to the interest of the owner of the building or structure in the whole, and not to a part of the land on which it stands. Collins v. Patch, 156 Mass. 317, 31 N.E. 295; Orr v. Fuller, 172 Mass. 597, 52 N.E. 1091; Vickery v. Richardson, 189 Mass. 53, 55, 75 N.E. 136; Kelley v. Border City Mills, 126 Mass. 148.

The unrecorded plan which this respondent caused to be prepared showed that at the date of the contract the land had been divided into lots. If it was his intention to treat the subdivisions as separate units, the description of the portion or lot on which the building stood, was found by the judge when dealing with the third request to have been sufficient. The true purpose and intention of the owner not only were material, but when ascertained are decisive. Pollock v. Morrison, 176 Mass. 83, 57 N.E. 326. The acts of the respondent in causing iron pins or stakes to be placed at the corners of the lots, and the laying out of the street, coupled with the previous conveyance of two lots, and the subsequent mortgage of the lot in question under descriptions corresponding with the plan, while furnishing strong presumptive proof of a division into building lots recognized and dealt with independently as such, were however to be considered in connection with his testimony, that he regarded the unsold portion as constituting but a single tract. Orr v. Fuller, 172 Mass. 597, 52 N.E. 1091.

A further provision, however, is found in section 6, that the omission to state the number of days where the description given is sufficiently accurate for identification, if there is no intention to mislead, and the parties entitled to notice have not been in fact thereby misled, and in section 7, that an 'inaccuracy in the statement relative to the property to which it attaches if such property can be reasonably recognized from the description,' shall not affect the validity of the lien....