Durling v. Gould

• Decision Date: 29 December 1890
• Citation: 83 Me. 134,21 A. 833
• Parties: DURLING v. GOULD et al.
• Court: Maine Supreme Court

21 A. 833

83 Me. 134

DURLING

v. GOULD et al.

Supreme Judicial Court of Maine.

Dec. 29, 1890.

(Official)

Exceptions from supreme judicial court, Hancock county.

This was an action of assumpsit to enforce a lien for labor.The owner of the building appeared and objected to the sufficiency of the statement Hied with the town-clerk.The presiding justice having ruled that it was sufficient, he filed exceptions to the ruling.

A. F. Burnham, for plaintiff.

Wis well, King & Peters, for defendant.

EMERY, J.The plaintiff, being in the employ of Aaron H. Gould, contractor, performed 57 and 9-10 days' labor in erecting the Hotel Mauor Inn at Sullivan Harbor, with the consent of the owner, Clyde D. V. Hunt.For this labor the plaintiff admittedly acquired a lien on the hotel by Rev. St. c. 91, § 650.

To preserve that lien, the same statute(section 32) required the claimant, within 30 days after he ceased to labor, to file, in the office of the clerk of the town in which the building is situated,"a true statement of the amount due him, with all just credits given, together with a description of the property intended to be covered by the lien sufficiently accurate to identify it, and the names of the owners, if known."The plaintiff ceased to labor July 27, 1889, and within thirty days thereafter filed in the office of the clerk of the town of Sullivan, in which the building is situated, the following paper:

"Sullivan, July 27, 1889.

"Mr. Aaron H. Gould, to Ballet R. Darling, Dr.

"To 57 9-10 days' labor on Hotel Manor Inn at Sullivan Harbor, at $225 per day, $130.18.Hallet R. Dun ling.

"State of Maine, Hancock—ss.: On this 26th day of August, 1889, personally appeared the above Hallet R. Durling, and made oath in due form that the above bill by him subscribed is just and true in all its parts, for which he wishes to secure a lien as provided by law.Cyrus Emery, Justice of the Peace."

Seasonably thereafter he brought this suit to enforce his lien claim on the hotel.Mr. Hunt, the owner, appeared to defend against the lien claim, and rested his defense solely on the ground that the above notice was insufficient in form to preserve the lien, in the following particulars: First, that it does not state, in terms, "the amount due," but only states a debit charge, without any statement as to credits; second, that it does not state that the Hotel Manor Inn is intended to be covered by the lien; third, that it does not state the names of the owners, nor that the names were unknown.It appeared that the plaintiff did not know who was the owner, though he supposed the Sullivan Harbor Land Company to be.

The presiding justice overruled these objections, and ruled that the notice was sufficient to preserve the lien.The owner excepted.

Mechanics' liens on buildings and land, though recognized and favored by the civilians, had no place in the common law, which, from its feudal character, was reluctant to subject realty to the payment of any claims other than feudal.They were introduced into the law by positive statute in this country.These statutes were naturally at first deemed by ...