Girouard v. Jasper

• Decision Date: 16 November 1914
• Citation: 219 Mass. 318,106 N.E. 849
• Parties: GIROUARD v. JASPER et al.[*]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 318

106 N.E. 849

GIROUARD v. JASPER et al.^[*]

Supreme Judicial Court of Massachusetts, Worcester.

November 16, 1914

COUNSEL

Marvin M. Taylor, Marvin C. Taylor, and Edwd. T. Esty, all of Worcester, for petitioner.

Rufus B. Dodge, Wm. J. Taft, Simon G. Friedman, and Timothy F Larkin, all of Worcester, for respondents.

OPINION

CROSBY J.

This is a petition to enforce a mechanic's lien for labor performed and materials furnished. The evidence shows that the petitioner and the respondent Jasper entered into four contracts, two of which were in writing and two were oral. The work upon all these contracts was carried on concurrently. The claim for lien is based upon one of the written contracts, and is dated May 11, 1912.

After the finding of the jury upon the issues submitted, the respondent made certain requests for rulings which were refused and the respondent excepted. The court upon the answers of the jury determined that the petitioner had established his lien for the amount claimed by him, and the respondent excepted. The evidence shows that the petitioner did not learn of the existence of the three mortgages upon the property until after the contract was partially completed. He testified that 'he first learned that after he had got the work pretty well along, at the last end of it.' After the petitioner learned of the existence of the mortgages, it is not disputed that he continued to furnish labor and material in the performance of the contract without objection and without any attempt on his part to rescind or abandon the contract. To enforce the lien filed by him in this case, the petitioner declares upon the contract and alleges full performance of all its stipulations on his part to be performed. It therefore appears that the petitioner bases his claim for lien upon the complete performance of an entire contract. The contract provides that:

'The balance, namely, thirty-five hundred (3,500) dollars is to be paid to the said contractor after the owner has secured on said property first and second mortgages, but said payment of the balance due shall not be made later than six months from date of the completion of the work.'

This provision in the contract is absolute in its terms and is binding upon the petitioner. If we assume that the jury were warranted in finding, as they did find, that the respondent Jasper was guilty of fraudulent concealment and false representations relative to the existence of mortgages on the property when the contract was entered into, yet it appears that the petitioner, after he had discovered the facts and was informed of the mortgages outstanding, proceeded to complete the contract without objection, and now relies upon it as the foundation of his claim for lien in this proceeding. The respondent contends that although the jury found that fraud was practiced upon the petitioner by the respondent, yet the petitioner, having failed to rescind the contract, and having completed it after knowledge of the fraud, has waived the fraud and is bound by its terms. It is plain that if a party to a contract seeks to avoid it by reason of the fraud or failure of the other party to comply with its terms, he cannot rescind it as to some of its provisions and rely upon it as to others. In order that this lien may be maintained, it must appear that the petitioner has substantially performed his part of the contract, and it must appear further that there is nothing in the contract itself which will prevent the establishment of the lien. Ellenwood v. Burgess, 144 Mass. 534, 11 N.E. 755; Osborne v. Barnes, 179 Mass. 597, 61 N.E. 276.

The provision as to payment of the balance due is without...