James King v. Janet M. Hoadley

• Court: Vermont Supreme Court
• Writing for the Court: SHERBURNE
• Citation: James King v. Janet M. Hoadley, 26 A.2d 103, 112 Vt. 394 (Vt. 1942)
• Decision Date: 05 May 1942
• Parties: JAMES KING v. JANET M. HOADLEY

26 A.2d 103

112 Vt. 394

JAMES KING v. JANET M. HOADLEY

Supreme Court of Vermont

May 5, 1942

February Term, 1942.

Mechanics' Liens.---1. Construction of Statute.---2. P. L. 2685, as Amended, Construed.

1. If there is ambiguity in one portion of a statute, it will be so construed as to effect harmony between that section and the rest of the statute.

2. The words "contract price" in Par. II of section 1 of No. 55 of the Acts of 1935, amending P. L. 2685, refer to the contract between the owner and the principal contractor.

ACTION TO PERFECT A LIEN. Answer of defendant struck out, and exceptions by defendant. Cause transferred to Supreme Court before final judgment, from Brattleboro Municipal Court Edward J. Shea, Judge.

The judgment striking out defendant's answer is reversed, and cause remanded.

Barber & Barber for plaintiff.

Osmer C. Fitts, John A. Swainbank and Philip W. Hunt for defendant.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This is an action, brought under P. L. 2687, as amended by sec. 4 of No. 55 of the Acts of 1935, for the purpose of perfecting a lien upon a building and lot of land owned by the defendant, in which the plaintiff alleges that the defendant made a written contract with one Arthur King for excavating a cellar and erecting a house upon such lot; that the plaintiff was employed by Arthur King upon the job, and has not been paid for labor to the amount of $ 77.00, performed from October 4 to 18, 1941 which became due October 25, 1941; that the plaintiff and Arthur King ceased working on the job on October 18, 1941; and that by reason of the failure of Arthur King to pay him the plaintiff on November 15, 1941, filed for record in the town clerk's office notice of a lien thereby asserted against the property for such sum, and delivered a copy thereof to the defendant. To this the defendant answered that by reason of the default and failure of Arthur King there was nothing unpaid on the contract with him and nothing due him on November 15, 1941. On the motion of the plaintiff this answer was struck out on the grounds that its allegations were immaterial and constituted no defense. To this the defendant excepted, and the cause has been brought here upon the defendant's exceptions before final judgment.

P. L. 2685 is amended by section 1 of No. 55 of the Acts of 1935, to read as therein provided. Paragraphs I, II and III thereof, so far as here material, read as follows:

"I. When a contract or agreement is made, whether in writing or not, for erecting, repairing, moving or altering a building * * * attached to the real estate, or for furnishing labor or material therefor, the person proceeding in pursuance of such contract or agreement shall have a lien to secure the payment of the same upon such building * * * and the lot of land on which the same stands.

"II. And a person who performs labor or furnishes materials to the amount of fifteen dollars or more for erecting, repairing, moving or altering such building * * * by virtue of a contract or agreement, whether in writing or not, with an agent, contractor or subcontractor of the owner thereof, shall, by giving notice in writing to said owner or his agent having charge of such property that he shall claim a lien for labor or material, have a lien to secure the payment of the same upon such building * * * and the lot of land upon which the same stands, to the extent of the portions of the contract price remaining unpaid at the time said notice is received.

"III. A lien herein provided for shall not continue in force for more than thirty days from the time when payment became due for the last of such labor performed or materials furnished unless a notice of such lien is filed in the office of the town clerk as hereinafter provided."

P. L. 2686, as amended by sec. 3 of such act, reads as follows:

"A person claiming a lien under the preceding section, shall file for record in the clerk's office of the town where such real estate is...