Hartley v. Richardson

• Decision Date: 04 April 1898
• Citation: 91 Me. 424,40 A. 336
• Parties: HARTLEY v. RICHARDSON et al.
• Court: Maine Supreme Court

40 A. 336

91 Me. 424

HARTLEY

v. RICHARDSON et al.

Supreme Judicial Court of Maine.

April 4, 1898.

(Official.)

Appeal from supreme Judicial court, Cumberland county.

Action by Willard G. Hartley against Arthur N. Richardson and others to enforce a mechanic's lien. From a judgment for defendants, plaintiff appeals. Affirmed.

This was a suit in equity, brought under the provisions of chapter 30 of the statute of 1895 for the enforcement of a lien for labor performed and material furnished in plastering a dwelling house in Portland.

It came to this court on an appeal from the decree of the justice of this court sitting below who heard the case and dismissed the bill.

It was admitted that the respondents Gribben were the owners of the land and of the buildings upon which the lien is claimed, and that the building was erected under a contract between the respondents Gribben and Richardson.

It appeared that the plaintiff, Hartley, did the plastering of the building under a contract with the respondent Richardson, furnishing all labor and material necessary therefor, which, at the contract price, 21 cents per square yard, amounted to the sum of $516.60. Credit of $191.60 was given, leaving due a balance of $325, the amount sued for in the bill.

The plastering was begun In July, 1895, and the last work was done and the last material furnished on October 7, 1895, when the patching was completed, and the workmen finally left.

The plaintiff filed a sufficient sworn notice of his claim of a Hen with the city clerk of the city of Portland, in which the land and building was situated, on October 23, 1895, within 40 days of October 7, 1895, and began this action on October 25, 1895, within 90 days of the 7th of October, 1895.

A. E. Neal, for plaintiff.

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

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

STROUT, J. Bill in equity to enforce a mechanic's lien. The justice who heard this cause and entered a decree found as matter of fact that the plaintiff "began work [plastering] in July, 1895, and fiuished his skim coating on the 19th of August then following, took away his stagings and tools, and vacated the premises, having completed his contract, upon which, at the stipulated price per yard, the sum of $516.60 then became due and payable, and upon which sum he has received a payment of $191; * * * that on October 7, 1895,—more than forty days after he had completed his job as aforesaid,—the plaintiff went to the houses with two men, the carpenters then having finished their work upon the same, and patched up any bruises or injuries caused by them to the plastering, and sundry trifling imperfections in the same left by the plaintiff's men when they vacated the premises on the 19th of the previous August, for which no extra charge was made or claimed"; and that this was done "without the knowledge or consent of the mortgagees," and that there was no substantial providing of materials or labor furnished later than the 19th of August, when the plaintiff's job was complete, and his compensation therefor became due and payable. Plaintiff filed in the clerk's office of Portland his claim for a lien upon the houses on October 23, 1895. The justice thereupon held that plaintiff's lien had expired before the filing of his claim in the clerk's office, and the bill was dismissed. From this decree plaintiff has appealed.

"The decision of a single justice upon matters of fact in an equity hearing should not be reversed unless it clearly appears that such decision is erroneous." "The burden to show the error falls upon the appellant." "He must show the decree appealed from to be clearly wrong, otherwise it will be affirmed." Young v. Witham, 75 Me. 536; Paul v. Frye, 80 Me. 26, 12 Atl. 544.

The evidence in the case justified the finding. The plaintiff and his men were at work, plastering by the yard. There is no evidence that he had any contract to plaster all of the two houses, or any particular portion of them. For aught that appears, he was at liberty to quit work at any time, and receive payment for the number of yards he had plastered. Richardson, his employer, had no claim upon plaintiff to work longer than he chose, and plaintiff was under no obligation to do so. It is true that he held a contract from Richardson for the conveyance of certain real estate, and that by it whatever work plaintiff did for Richardson was to be at the price of 21 cents per yard, one-fourth part of which was to be retained by Richardson towards payment for the land; but plaintiff did not bind himself by that contract to do any particular amount of nor any work for Richardson. His rights and liabilities as to Richardson, in the work on these houses, were those of a day laborer.

He quit work, took away his men and appliances for the work, and left the house cleared for the carpenters, on the 19th day of August, 65 days before be filed his claim for lien....