Gurney v. Walsham

Decision Date01 February 1890
PartiesGURNEY et al. v. WALSHAM.
CourtRhode Island Supreme Court

Petition for the enforcement of a mechanic's lien.

Walter B. Vincent, for petitioners. Herbert B. Wood and William Fitch, for respondent.

DURFEE, C. J. This is a petition for the enforcement of a mechanic's lien for materials furnished. The materials were furnished to one William W. May, who had entered into a written contract with the defendant, dated April 20, A. D. 1888, to build a dwelling-house for him on a lot of land belonging to him in the city of Providence. The materials were furnished at different times between June 20, A. D. 1888, and October 27, A. D. 1888, inclusive, to be used in the erection of said house, and were so used. The claim of the petitioners is for a balance of $375.04. They gave the defendant written notice of their intention to claim the lien, November 3, A. D. 1888, and the same day placed a copy thereof on record in the office of the recorder of deeds of said city of Providence, in a book kept for that purpose. This notice was given and copy recorded under Pub. St. R. I. c. 177, 8 5, as amended by Pub. Laws R. I. c. 696, § 4, of March 21, 1888, which provides that "no lien shall attach for materials furnished unless the person furnishing the same shall, within sixty days after such materials are placed upon the land, give notice in writing to the owner of the property to be affected by the lien, if such owner be not the purchaser of the materials, that he intends to claim such lien, and shall, within the aforesaid sixty days, place a copy of said notice on record in the office of the town-clerk of the town in which such land is situated, in a book to be kept for that purpose," etc. The defendant claims that when these notices were given and recorded he had paid May all that he was entitled to under his contract, and owed him nothing. The petitioners lodged the account for which they claimed the lien, with notice to what building and land, and to whose estate therein, said account referred, in the office of the recorder of deeds of said city, February 14, 1889. The petition was filed the same day.

The defendant contends that the materials were not so furnished as to give the petitioners any right to a lien. Whether they were or not, depends on Pub. St. R. 1. c. 177, 8 1. as amended by Pub. Laws R. I. c. 696, § 1, of March 21, 1888. The lien given by chapter 177, § 1, before it was amended, extended only to materials used in "construction, erection, or reparation," as there stated, which had been furnished by the person contracted with, or requested by the owners of the estate thereby improved, to make such "construction, erection, or reparation." The lien given by said chapter 177, § 1, as amended, extends to "the materials used in the construction, erection, or reparation, which have been furnished by any person," etc. The language seems to us to be unambiguous, except as regards the word "furnished." The word is not expressly limited, and may be thought to cover materials furnished to the contractor on general account, as well as materials furnished to him for use in performing his contract, and so used. We think, however, that the word, taken in connection with its context, must receive the more limited interpretation; that is to say, that, for the lien to attach for the benefit of the material-man, the materials must not only have been used in "the construction, erection, or reparation," but must also have been furnished by him to be used so. The defendant contends that, to give rise to the lien, they must have been furnished on the credit of the owner of the estate sought to be charged. We see nothing to warrant this view. The requirement in the provision above quoted, that the written notice shall be given to the owner, "if such owner be not the purchaser of the materials," is inconsistent with it. We are of opinion that the petitioners, so far as their materials were furnished to May, to be used in the erection of said house on said lot, and were so used by him, are entitled to a lien therefor, if, and in so far as, they have taken the proper steps to secure it.

The defendant contends that they have not taken the proper steps, because they waited more than 60 days after they commenced furnishing the materials before they gave the written notice, and placed a copy thereof on record in the office of the recorder of deeds. The statute provides that "no lien shall attach for materials furnished, unless the persons furnishing the same shall, within sixty days after such materials are placed upon the land, give notice in writing," etc. Clearly such a notice will not cover materials placed on the land more than 60 days before it is given, so as to entitle the material-man to a lien for them; but the statute does not, in terms, require that the notice, to be effectual for said 60 days, shall be given and placed on record within 60 days after the material-man commences delivering; and it seems to us that the more natural and reasonable construction is that the notice,...

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9 cases
  • Becker v. Hopper
    • United States
    • Wyoming Supreme Court
    • 27 de janeiro de 1914
    ... ... Smith, 3 S.D. 631, 54 N.W. 816; Laird v ... Moonan, 32 Minn. 358, 20 N.W. 354; Gardner v ... Leck, 46 Minn. 285, 48 N.W. 1120; Gurney v ... Walsham, 16 R. I. 699, 19 A. 323; Spokane M. & L ... Co. v. McChesney, (Wash.) 21 P. 198; Hightower v ... Bailey, 108 Ky. 198, 56 ... ...
  • Art Metal Const. Co. v. Knight, 1238.
    • United States
    • Rhode Island Supreme Court
    • 11 de maio de 1936
    ...of the statute as amended is entirely in harmony with three cases which came before this court soon after the amendments. Gurney v. Walsham, 16 R.I. 698, 19 A. 323; Newell v. Campbell Machine Co, 17 R.I. 74, 20 A. 158; Tingley v. White, 17 R.I. 533, 23 A. 100. In these it was held, among ot......
  • Jones v. Great Southern Fireproof Hotel Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 5 de abril de 1898
    ...full payment to the contractor after the completion of the building, and before notice of the claim to a lien was filed. In Gurney v. Walsham, 16 R.I. 699, 19 A. 323, constitutionality of such an act was affirmed, upon the ground that the contract was made and entered into subject to its pr......
  • R.I. Marble & Tile Co. v. Spear
    • United States
    • Rhode Island Supreme Court
    • 17 de dezembro de 1928
    ...claim a lien was given. The court said that as to these items the petitioner was clearly barred by the statute. See, also, Gurney v. Walsham, 16 R. I. 698, 19 A. 323. We have held our statute creating mechanics' liens is in derogation of the common law and must be construed strictly. McParl......
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