J. A. Greenleaf & Sons Co. v. Free-Andrews Shoe Co.

• Decision Date: 31 December 1923
• Citation: 123 A. 36
• Parties: J. A. GREENLEAF & SONS CO. et al. v. FREE-ANDREWS SHOE CO. et al.
• Court: Maine Supreme Court

123 A. 36

J. A. GREENLEAF & SONS CO. et al.

v. FREE-ANDREWS SHOE CO. et al.

Supreme Judicial Court of Maine.

Dec. 31, 1923.

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

Consolidated actions by the J. A. Greenleaf & Sons Company and others against the Free-Andrews Shoe Company and others. Submitted on report. Decree in accordance with opinion.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Harry Manser, of Auburn, for plaintiffs.

White, Carter & Skelton and L. J. Brann, all of Lewiston, for defendants.

SPEAR, J. This consolidated cause (R. S. c. 96, § 35) aims to establish mechanics' liens upon land and buildings formerly occupied by Free-Andrews Shoe Company under lease from George C. Wing, the owner thereof, who is made a defendant, and has answered.

At the hearing before a single justice upon the coming in of the master's report, trial by jury having been waived, the cause was reported to the law court for final determination.

There is little, if any, dispute as to the material facts. On December 15, 1919, George C. Wing, the owner, leased to Free-Andrews Shoe Company for a term of five years from that date, at a rental of $55 a month—

"A certain three-story wooden building, with basement, standing on the easterly side of Mechanics Row, in said Auburn, the first story of which has for many years been occupied by John M. Crawshaw as a machine shop; and the right to have a conveyance by deed of warranty at any time during the term of this lease, of said building and the land between said building and a line five feet distant from the stable known as the Hotel Cortland Stable, and extending back parallel thereto to the line now occupied by a temporary fence, upon the payment of $8,500 in money; but the lease of the building does not carry with it a lease of the land, except so much thereof as is necessary for the purpose of ingress and egress to the building first described. Said lessee is to pay all water rates and sprinkling taxes, if any during the term of this lease, and to make all repairs inside and out."

The lease contained no other convenant as to repairs than as above stated, nor any statement of the purposes for which Free-Andrews Shoe Company intended to use the building; but undoubtedly the lessor knew when the lease was executed that the lessee was hiring the building for use as a shoe factory and intended to manufacture shoes therein.

The building had previously been used, at least in part, as machinist's shop for many years. Upon the execution of the lease the lessee took possession and employed J. A. Greenleaf & Sons Company to make alterations and repairs necessary to adapt the building for the manufacture of shoes. The work was done and materials furnished between January 7, 1920, and March 17, 1920. The business career of Free-Andrews Shoe Company was short. The lease was terminated for breach of the conditions thereof, and lessor took possession April 13, 1920. The lessee was adjudicated a bankrupt April 24, 1920. While the lease was in force the lessee was in possession of the building, and the lessor exercised no control over it. While the alterations and repairs were in progress Mr. William A. Greenleaf called the attention of the owner's son to the work; the conversation as given in the son's testimony, which is not contradicted, is as follows:

"I met Mr. Greenleaf in front of the building in which our office is. He said to me he was engaged in—I am not quoting exactly, but the substance of it—that he was engaged in renovating your Free-Andrews Shoe Company building, and he made an inquiry of me as to what interest or direction we had in it. I told him we had none. He changed, I think, a window, if I remember correctly. I said to him that the repairs were on the Free-Andrews Shoe Company. Mr. Greenleaf says to me, 'I understand the repairs are on the lessee.' He said he didn't want to make what he called a structural change without my father's knowing about it, and I spoke to my father and reported either to Mr. Greenleaf or Mr. Free—I think to Mr. Free—and he sent word to Mr. Greenleaf that, as long as there was no weakening of the building, there was no objection, and I never went near the building; never was in it until after the bankruptcy."

The attitude of Mr. Wing, the owner, is best expressed in his own language, as follows:

"You will notice that this lease provides that the lessee was to do all repairs, inside and out, and it didn't concern us what repairs were if they did not impair the efficiency of the building. I never went near it.

"Q. But what I want to get at is whether you knew that they were making changes and repairs and alterations in the building for other purposes?

"A. I only had a suggestion of it once, and I will tell you about that. My son came in one day and said, 'Mr. Greenleaf'—'Put,' he called him—'said he was making some changes out there. I won't say whether they were putting in a door where there had been a window, or putting in a window where there had been a door; something of that sort, and Put says he didn't know but you ought to know about it.' I says, 'I don't care anything about it if they don't weaken the building.' I says, 'Greenleaf knows better than that.' I never went near it.

"Q. That is, you mean that Greenleaf knew better than to do anything to weaken it?

"A. Yes; that I thought Greenleaf knew too much to weaken the building; that is all I cared about it; might do what they were a mind to.

"Q. That is, while Greenleaf & Sons were at work there you did know that something was being done?

"A. Yes; I did have that suggestion. I was busy and paid no attention to it."

The paint furnished by Charles M. Hay Paint Company was purchased by Mr. Free and used upon the building, in greater part upon the interior, by J. A. Greenleaf & Sons Company. Mr. Wing had no knowledge of this paint bill; the representative of the paint company made no inquiries as to the ownership of the building, and was content to deal with the Free-Andrews Shoe Company alone.

The foregoing are the material facts presented in a light as favorable to the lien claimants as the case will permit.

This is a bill to enforce a lien claim against the property of the owner in invitum, for work and materials furnished under a contract to which the owner was not a party and over which he had no control. The only question, therefore, is whether the consent of the owner should be inferred from the foregoing facts, including his declaration touching his knowledge of what was being done. R. S. c. 96, § 29, provides 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."

Consent is defined in Hanson v. News Publishing Co., 97 Me. 99, 53 Atl. 990, as follows:

"Consent within the meaning of the statute, is held to mean something more than acquiescence. It implies an agreement to that which could not exist without such consent."

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