Fletchercrowell Co. v. Chevalier

• Citation: 108 Me. 435,81 A. 578
• Parties: FLETCHERCROWELL CO. v. CHEVALIER et al.
• Decision Date: 22 November 1911
• Court: Supreme Judicial Court of Maine (US)

81 A. 578

108 Me. 435

FLETCHERCROWELL CO.

v. CHEVALIER et al.

Supreme Judicial Court of Maine.

Nov. 22, 1911.

Report from Supreme Judicial Court, Androscoggin County, in Equity.

Action by the Fletcher-Crowell Company against Ovid Chevalier and others. On report. Judgment for plaintiff.

Bill in equity to enforce a mechanic's lien for materials alleged to have been furnished in the construction of a certain building in Lewiston.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

George C. Wing and George C. Wing, Jr., for plaintiff.

McGillicuddy & Morey, for owner of building.

WHITEHOUSE, C. J. In this suit the plaintiff seeks to enforce a mechanic's lien for materials alleged to have been furnished to the defendants Chevalier and Ducharme in the construction of a building which they had contracted to erect for the defendant L'Union Musicale, the owner of the land, and for which they had agreed to provide all the materials and perform all the work.

This case, with three others against the same defendants, was referred to Mr. Justice Savage for determination. Upon his report a final disposition was made of the other three cases; the one at bar being the only case for the consideration of the court. By agreement of the parties this case was "reported to the law court to determine for what amount this plaintiff has a lien upon the land and building described in its bill upon the facts stated in the referee's report, and to direct judgment accordingly."

The referee's report discloses the following facts and conclusions respecting the case at bar:

"The Fletcher-Crowell Company contracted with Chevalier and Ducharme to deliver on cars at Lewiston all the iron or steel work described in the account annexed to their bill in equity. It was all shipped at different times by railroad to Lewiston. Some of it consisted of special castings, made specially for this building, and not fitted to any other. Some of it was taken by Chevalier and Ducharme to the site of the building, and some of it still remains in the possession of the railroad company. A part of the steel was used in the construction of the building.

"After the building was partly constructed, owing to a heavy rainstorm and washout, a portion of the building settled, and required a rebuilding to some extent. The owners and the contractors disagreed as to which party the loss or damage should fall upon. The contractors were willing to stand a portion, but not all, of the expense of rebuilding the damaged portion. Thereupon L'Union Musicale prevented the contractors from going on with their work, under the existing conditions, as to rebuilding.

"Afterwards the plans of the building were remodeled, and the building was built one story lower than was at first contemplated. Owing to the change, some of the lumber furnished by Richardson, Dana & Co. and some of the special castings and other steel furnished by the Fletcher-Crowell Company were not needed and were not used. But the owner completed the building on its own account and used some of the Richardson, Dana & Co. lumber and some of the Fletcher-Crowell Company steel in the construction. For this lumber and steel the owner does not object to paying, or to having liens adjudged.

"The contractors, after they ceased working, notified the Fletcher-Crowell Company that they found themselves unable to continue the work, and directed that company to order the iron then in the possession of the railroad company to be reshipped. This was not done.

"A particular controversy exists as to two columns, ordered of and shipped by the Fletcher-Crowell Company. They were made in accordance with the specifications, and were actually set up in the building by the contractors. Later they were removed at the request of the building committee of L'Union Musicale, it being claimed that the columns had not been properly set.

"As to the claim of the Fletcher-Crowell Company, I find that this plaintiff under its contract with Chevalier and Ducharme furnished materials for the erection of the building to the amount of $2,025.00. Of this, materials to the amount of $1,720.60 were never used in the construction of the building, at any time, in any way. Two steel columns, for which $140 is charged, were set in the building, and afterwards removed, as already stated. Materials to the amount of $105.30 were used in the erection of the building, and remain in it.

"In the Fletcher-Crowell Company case I report the facts as above stated, for the judgment of the court on the law involved.

"If the court is of opinion that the Fletcher-Crowell Company has a lien for all the materials furnished for the erection of the building, whether used or unused, I award that it shall have a personal judgment and judgment for a lien upon the land and building described in its bill, with costs, each in the sum of $2,025.90, with interest from September 21, 1910. If, however, the court is of opinion that the plaintiff has no liens for materials which did not enter into the construction of the building and become a part of it, then I award that its lien judgment aforesaid shall be for the sum of $305.30, or $165.30 only, with interest and costs as stated, according as the court determines that the plaintiff has, or has not, a lien for the two columns, set in the building and afterwards removed, as already stated."

Upon the facts thus reported two questions are presented for the determination of this court: First, whether the plaintiff is entitled to a lien for materials furnished to the amount of $1,720.60, "which were never used in the construction of the building at any time in any way"; and, second, whether the plaintiff is entitled to a lien for the item of $140 for the two iron columns that were set in the building and afterwards taken out by order of L'Union Musicale.

It is provided by section 29 of chapter 93 of the Revised Statutes that "whoever performs labor or furnishes labor or materials in erecting, altering, moving or repairing a house, building or appurtenances * * * by virtue of a contract with or by consent of the owner, has a lien thereon and on the land on which it stands * * * to secure payment thereof with costs."

Whether it is necessary to prove that the materials furnished were actually incorporated in the building in order to create a lien upon it, under the above statute and others having substantially the same tenor and purpose, is a question not entirely free from difficulty and one with respect to which courts of equal respectability have reached different conclusions.

Many of the earlier cases upon the subject are collected and considered in 13 Am. & Eng. Ann. Cas., p. 11, in a note to Central Lumber Company v. Braddock Land & G. Co., 84 Ark. 560, 105 S. W. 583. In the principal case it was held that, under a statute authorizing a mechanic's lien for the value of material furnished "for any building," the materials furnished must be actually used in its construction before the lien can attach. In the note Maine is placed in the category of 15 states that have adopted this rule; but an equal number of states are cited in support of the contrary view, that the lien exists as to all materials furnished in good faith, whether they actually become part of the structure or not. In 19 "Annotated Cases," p. 588, it is said in the note to the principal case that "the recent cases indicate a tendency of the courts to hold that the lien does not exist unless the materials were actually used in the erection of the building."

In support of this statement the following cases are cited: Potter Mfg. Co. v. Meyer, 171 Ind. 513, 86 N. E. 837, 131 Am. St....