Fabnham v. Richardson

• Citation: 91 Me. 559,40 A. 553
• Parties: FABNHAM v. RICHARDSON et al.
• Decision Date: 28 May 1898
• Court: Maine Supreme Court

40 A. 553

91 Me. 559

FABNHAM

v. RICHARDSON et al.

Supreme Judicial Court of Maine.

May 28, 1898.

(Official.)

Appeal from supreme judicial court, Cumberland county.

Suit by Horace F. Farnham against Arthur N. Richardson and others. From a decree dismissing the bill, plaintiff appeals. Reversed.

This was an equity appeal from a decree of the court sitting below dismissing a bill filed by the plaintiff to enforce a lien under the statute upon land and buildings for materials furnished by him in the construction of a building owned by Percy A. and Wesley L. Gribben, two of the defendants in the bill. The other defendants besides Richardson, the contractor, are the Maine Wesleyan Board of Education, holding a mortgage of $3,000, dated September 19, 1895, recorded October 1, 1895, given for money advanced to pay a former mortgage and work done on the house; and S. H. and A. R. Doten, assignees and holders of a second mortgage, dated and recorded October 1, 1895, and given by Gribben Bros, to Richardson in full settlement for the balance due that contractor for building the block of buildings.

J. W. Symonds, D. W. Snow, and C. S. Cook, for appellant.

J. A. & Ira S. Locke, for appellees P. A. & W. L. Gribben and Maine Wesleyan Board of Education.

H. W. Gage and C. A. Strout, for appellees S. H. and A. R. Doten.

WISWELL, J. Bill in equity to enforce a lien for materials furnished for and used in the construction of a double frame house in the city of Portland.

The case was heard by a single justice, and comes here upon appeal from his decree. From the facts found by him and stated in his decree, and from the report of the testimony accompanying the appeal, it appears that the defendants Gribben were the owners of the land upon which the building was erected; that they contracted with the defendant Richardson for its construction; that the plaintiff, upon the order of Richardson, furnished materials that went into the construction of the building to the amount of $422.20; and that the last of the materials furnished by the plaintiff, with the exception of the transaction hereafter referred to, was upon September 19, 1895. The plaintiff filed his lien claim in the clerk's office of the city of Portland upon November 6, 1895, more than 40 days after September 19, 1895.

But upon October 1, 1895, the plaintiff furnished a door for this building, and made a charge therefor of $3.50 under the following circumstances, as stated in the finding of facts contained in the decree: "The men of the defendant Richardson, finding that one of the doors delivered by the plaintiff would not fit the frame prepared for it, made the fact known to one of the defendants Gribben, who thereupon telephoned to the plaintiff's office, requesting an exchange of the door delivered for one of a different size but otherwise similar; and that on the next day he took the door delivered by the plaintiff into his wagon, carried it to the plaintiff's place of business, and there exchanged it for a new door different in size only, which he earned to the houses, and it was there hung by the workmen of the defendant Richardson. The exchange was inferably made at the request of the defendant Richardson and for his convenience only. Upon the day that said door was exchanged the plaintiff credited Richardson upon his books with the door returned at the price originally charged for the same, to wit, $3.35, and charged for the door delivered in exchange, which was two inches larger one way than the door returned, $3.50, or 15 cents more than for the door returned."

The justice considered that the transaction of October 1st was of too trifling a character to allow the time, within which the lien claim must be filed in the city clerk's office, to commence running at that date, and decreed that the bill be dismissed, with costs.

The statute provides that a lien of this kind shall be dissolved unless the claimant files in the office of the clerk of the town in which the building is situated a true statement of his claim, "within forty days after he ceases to labor or furnish materials." When did this claimant cease to furnish materials? On the 1st day of October, with the knowledge, and in fact...