Ettridge v. Bassett

• Decision Date: 04 January 1884
• Citation: 136 Mass. 314
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James N. Ettridge v. William Bassett & another

136 Mass. 314

James N. Ettridge v. William Bassett & another

Supreme Court of Massachusetts

January 4, 1884

Argued November 14, 1883 [Syllabus Material]

Suffolk. Petition to enforce a mechanic's lien. Trial in the Superior Court, without a jury, before Gardner, J., who reported the case for the determination of this court, in substance as follows:

It appeared that, prior to August 20, 1881, Benjamin B. Newhall was the owner of the land described in the petition, and on that day he made an absolute conveyance of the same, free from incumbrances, by warranty deed, dated August 13, 1881 to the respondent Bassett; and, the land having been divided into three lots, Bassett made a mortgage back to Newhall on each of said lots, one for $ 5500, one for $ 6500, and one for $ 8000. An agreement in writing was entered into on said August 13, between Newhall and Bassett, which recited the conveyance above mentioned, and that Bassett proposed to erect certain buildings on the three lots; the execution of the above-named mortgages, and that they were made in contemplation of the erection of said buildings on the land, and of the advance of $ 11,000 by Newhall to Bassett in consideration of the mortgages, the price of the land forming the remainder of the consideration; that Bassett agreed to erect and complete said buildings within a time named; that, if the work on the buildings was discontinued, Newhall might prosecute the same to completion at Bassett's expense, all sums so expended to be considered as secured by the mortgages; and that any liens claimed on said buildings and land might be settled by Newhall, and any sums so paid should be deemed part of the advance above provided for, and be secured by the mortgages. The warranty deed, mortgages, and agreement were executed and delivered at the same time, and as parts of the same transaction. Bassett paid no money and gave no other consideration for the warranty deed than the mortgages, and as is set out in the written agreement. The warranty deed and the three mortgage deeds were all duly recorded on August 20, 1881. On September 10, 1881, Newhall assigned said mortgages to one Poor, to obtain money to carry out the agreement, Poor having notice of said agreement; and subsequently Poor assigned the mortgages to other persons, who had no notice of said agreement, but who knew that the buildings were under construction and unfinished. Immediately after the delivery and recording of the deed and mortgages, Bassett commenced the masonry-work of the buildings, and Newhall advanced money to him, from time to time, until December 5, 1881, when Bassett failed to continue the work and left it in an unfinished condition, and at that time the cash advances from Newhall amounted to $ 5500; and Newhall, under the agreement, then took charge of the work and finished the buildings. The purchase money of the land, the sums advanced by Newhall to Bassett, and the money laid out by Newhall in completing the buildings, amounted to more than the amount of the three mortgages.

On August 13, 1881, Newhall and Bassett orally agreed upon the transaction, which was reduced to writing on August 20, 1881; and a few days before said August 20, Bassett requested the petitioner to assist him in the construction of the buildings by superintending the work and doing a part of the same, and the rate of wages of the petitioner was then agreed upon, and some preparations were made by them in examining materials to be purchased, and in ascertaining the lines of the land to be built upon. On August 24, the petitioner commenced the masonry-work under the direction and in the employ of Bassett, and continued the same until he ceased, on November 19, 1881; and, within thirty days thereafter, he duly filed his certificate of lien in the registry of deeds, and commenced this action on February 16, 1882.

It also appeared that Newhall did not authorize Bassett to do any work on the land before the conveyance thereof, on August 20 1881, and after that day their relations to each other were regulated by said written agreement; and that, some time after this action was commenced, said mortgages were foreclosed by the assignees thereof...