J. W. White Co. v. Griffith

• Decision Date: 28 February 1929
• Citation: 145 A. 134
• Parties: J. W. WHITE CO. v. GRIFFITH et al.
• Court: Maine Supreme Court

145 A. 134

J. W. WHITE CO.

v. GRIFFITH et al.

Supreme Judicial Court of Maine.

Feb. 28, 1929.

Appeal from Supreme Judicial Court, Franklin County, in Equity.

Bill by the J. W. White Company against Rufus D. Griffith and others. Decree of dismissal, and plaintiff appeals. Appeal dismissed, and decide affirmed.

Argued before WILSON, C. J., and DEASY, STURGIS, BARNES, and BASSETT, JJ., and PHILBROOK, A. R. J.

Geo. C. Webber, of Auburn, for appellant.

Rufus D. Griffith, pro se.

Benjamin L. Berman and David V. Berman, both of Lewiston, and Jacob H. Berman and Edward J. Berman, both of Portland, for appellee Shean.

WILSON, C. J. A bill in equity to enforce a lien on a building and land for materials furnished by the plaintiff in the construction of the building.

One of the defendants, Albert Shean, formerly owned a summer cottage at Oquossoc, in the town of Rangeley, which he had given to his son several years before the building in question was erected. In the summer of 1927 he decided to build a garage on the property for his son, and, becoming acquainted with the defendant Griffith, engaged him to build the garage and furnish the necessary materials.

Mr. Shean testified before the sitting justice that Griffith assured him that he had the necessary lumber on hand, which Griffith denied. As a matter of fact he had no lumber, but ordered it of the plaintiff.

When the job was completed Shean paid Griffith the amount agreed upon, including his labor and for all material; but Griffith never paid the plaintiff for the lumber.

The plaintiff seasonably filed a notice to preserve its lien and brought this action.

The sitting justice found as facts:

(1) That Mr. Shean did not know that plaintiff furnished the material.

(2) That the plaintiff sold the material to Griffith on an open account and on his credit alone.

(3) That the plaintiff had no intention to look to the building for its pay until it discovered the bankruptcy of Griffith; and upon these findings ordered the bill dismissed. The plaintiff thereupon appealed.

If the sitting justice was warranted on the evidence in finding the above facts, the appeal must be dismissed, since, as will appear, if either the first or second was true, the plaintiff must fail.

Only one who furnishes labor or materials which are used in the erection, alteration, or repair of a building under a contract with the owner or with /his consent has a lien thereon under the statutes of this state.

It is unnecessary in the decision of this case to discuss the effect of the ownership of the property by the son, Lawrence Shean, since if the materials were not furnished with the consent of the father, Albert Shean, by no possibility on the evidence could they have been furnished with the consent of the son.

As the materials were not furnished under a contract with the owner, the plaintiff must show that they were furnished with the owner's consent. It must also appear that they were furnished for the construction, alteration, or repair of a particular building and were not sold on an open account for general use.

It is only where materials are furnished for the purpose mentioned in the statute that a lien results. Choteau v. Thompson, 2 Ohio St. 114; Hill v. Bishop, 25 Ill. 347, 79 Am. Dec. 333; Chapin v. Persse et al., 30 Conn. 461, 79 Am. Dec. 263; Fuller v. Nickerson, 69 Me. 228, 236. While section 29 of chapter 96 now reads whoever performs labor or furnishes materials in erecting, etc., the original lien statute in this state, enacted in 1821, chapter 169, P. L., provided a lien to such as under a contract furnished labor and materials "for erecting or repairing" a building. The same words "for the erecting, repairing or altering" are found in the act of 1837, chapter 273, P. L., and were retained in the revision of 1841 (c. 125, § 37) and in the revision of 1857 (c. 91, § 16). It was not until the revision of 1871 when the Acts of 1868, chapter 207, P. L., and of 1869, chapter 57, P. L., were consolidated that substantially the present language appears; whoever performs or furnishes labor or materials in erecting, etc. In view of the history and purpose of this statute, we think no change in effect was intended by the substitution of "in" for "for"; since to maintain his lien, if his contract was not with the owner, one, under section 28, c. 91, R. S. 1871, was obliged to give notice before furnishing the labor or materials of his intention to claim the lien.

Nor do we think the repeal of this clause requiring notice of an intent to claim a lien before furnishing labor or material in 1876, chapter 140, P. L., in any way altered the requirement that the labor or materials where not furnished under contract with the owner must be furnished for the purpose of erecting, altering, or repairing some particular building even though its exact location might not be then known to the person furnishing the materials; and if sold in the general course of trade on the credit of the purchaser without any understanding that they were to be used in a particular building then under construction, alteration, or repair, or under contract with the owner for the construction, alteration,...