OPINION
HAMMOND, J.
This is
a petition to enforce a mechanic's lien upon a lot of
land in Brookline, upon which an apartment hotel known as
'Putnam Chambers' has been erected. The petition as
amended alleges that the work was done under a contract
between the petitioners and the respondent Tidden, by the
terms of which the petitioners were to furnish all labor and
materials required for the erection and completion of the
building, except the foundation, cut stone, gas piping
electric wiring, heating, plumbing and painting, for the sum
of $71,000; that under this contract the petitioners
proceeded to furnish labor and materials actually used in the
construction of the building; that without their own fault
they were prevented from fully performing the contract by
reason of Tidden's failure to perform his part, and that
there is due to them a balance of $26,372.65, as shown in an
account annexed, for which amount the lien is claimed.
An
intervening petition was filed by Sheehan, alleging a
contract between him and Tidden, by which Sheehan was to
prepare plans and specifications and supervise the erection
of the building for $2,500. The intervening petition
contained allegations similar to those in the original
petition as to the partial performance of the work and the
prevention of its completion
and as to the ownership of the property; and alleged that
there was due as a reasonable compensation for the work done
the sum of $975, for which amount a lien is claimed.
Tidden
appeared, but filed no answer. The respondent
Skinner filed an answer in which he denies generally the
allegations of the petition, and alleges that on April 2,
1902, the date of the contract described in the amended
petition, Tidden was not the owner of the premises, and did
not have any right, title or interest in or to the same until
April 14, 1902, on which day the owner conveyed to him and at
the same time and as a part of the same transaction he
mortgaged the premises to the Massachusetts Title Insurance
Company for the sum of $80,000, and that both the deed and
mortgage were recorded together, so that Tidden had only an
instantaneous seizure of the land; that the mortgage was duly
foreclosed and that Skinner purchased at the foreclosure
sale, and is now the owner free from all liens which may have
accrued subsequent to said mortgage. The answer further
alleged that at no time prior to the recording of said
mortgage did the petitioner make any contract with the owner,
or any person having authority from him; that this labor and
materials were not performed or furnished by virtue of any
agreement with or by the consent of the owner or any person
having authority from him prior to the date of the mortgage,
and that no notice was given to the owner prior to the date
of the mortgage. A similar answer to the intervening petition
was filed by Skinner.
The
case was referred to an auditor, who made a report. At the
trial in the superior court the case was heard by the court
sitting without a jury, the only evidence being the report of
the auditor together with nine exhibits. The court found for
the original petitioners for the amount claimed, and for
Sheehan in the sum of $800, and ordered that liens be
established for these respective sums. The case is before us
upon certain exceptions alleged by the respondent Skinner to
the findings of fact made by the court, and to the orders
establishing the liens as well as to certain rulings and
refusals to rule. In considering the case the term
petitioners will be used to designate only Libbey and Dixon,
the original petitioners. Sheehan, as hereinbefore seen, is
an intervening petitioner.
1. As
to the contract. One of the grounds of the defense is that
the contract under which the petitioners claim was not made
until after the mortgage under which Skinner held. As to this
the court found that, on April 11, 1902, a contract was made
between Tidden and the petitioners Libbey and Dixon,
'whereby the firm was to furnish labor and materials
necessary to construct the mason work, carpenter work and
roofing of' the building in question, 'for the entire
price of $71,000. The amounts and times of payments were not
agreed upon, but it was agreed in a general way that they
were to be made as the floors went on. It was also agreed
that Libbey & Dixon were to have later what is known as a
'uniform contract,' being the form of contract
adopted and recommended for general use by the American
Institute of Architects and the National Association of
Builders. The uniform contract was given August 2, 1902, but
that instrument did not in any essential particular alter the
existing contract of April 11, and was an affirmation of it
and not a substitute for it.'
The
respondent contends that the above findings are not warranted
by the evidence. Inasmuch as the only evidence was the
auditor's report and exhibits, this point must be decided
by an inspection of the report. Upon this question the
auditor reports as follows:
'On
April 2, 1902, Tidden and Libbey went to the Putnam lot and
had a conversation in regard to the building which Tidden
said he was intending to erect upon it, in the course of
which Tidden told Libbey that he wished him to see Sheehan
and then give him, Tidden, an estimate of the cost of such
a building. Another building known as 'Stearns
Chambers' was then under construction just across the
street, and Libbey & Dixon were the contractors and Sheehan
the architect. Libbey went to see Sheehan, got the plans
and made figures on the cost, and on April 10th or 11th
gave Tidden an estimate of $150,000. Tidden then asked him
what he would do the mason work, the carpenter work and the
roofing for, and Libbey said he would do it for $71,000, to
which Tidden replied, 'All right, I will give you the
contract.' The amounts and times of payments were not
agreed upon, but it was agreed in a general way that they
were to be made as the floors went on. It was
also agreed that Libbey & Dixon were to have later what is
known as a 'uniform contract,' being the form of
contract adopted and recommended for general use by the
American Institute of Architects and the National
Association of Builders. On April 12th, Libbey went to the
lot and drove some stakes to indicate where the excavation
for the cellar was to be made, and during the time from
April 2d to that date he had frequent interviews with
Tidden in regard to the building. The first item in his
statement of account is a charge of $80 covering these ten
days at $8 a day and including the wages of his son and
another young man who went to the lot with him and helped
him drive the stakes. He did nothing else in reference to
the building until June 21st, when he sent two carpenters
there to put up the permanent better-boards. On July 16th,
and on five other days in that month he laid 35,000 brick
in the building of cross walls in the cellar, at an
estimated cost of $700, the mortar being taken from the
mortar beds at the Stearns Chambers job. On August 2d the
written contract was signed, and it appears in evidence as
'Exhibit 1.' Mr. Libbey said that there was no
particular reason why it was not signed
before, though he had spoken to Tidden frequently in regard
to it. The contract is written upon the uniform contract
blank, and provides that 'the contractor shall and will
provide all materials and perform all the work mentioned in
the specifications and shown on the drawings prepared by
the said architects for the erection and completion of that
portion of the work included in the specifications of
building of the Putnam Chambers, except cut stone and gas
piping.' This contract is claimed by the petitioners to
cover all the points mentioned in the conversation between
Tidden and Libbey, which resulted in Tidden's saying
that he would give him the contract, except that the dates
for the payments were fixed. The respondents, on the other
hand, claim that the petitioners had no contract before
August 2d, but only an agreement for, or a promise of, one,
and point out that the written contract specifies dates of
payments, that the building should be finished by a certain
time, that the contractors should allow the owner insurance
money, etc., none of which matters were considered or
spoken of by the parties when Tidden said that he would
give the contract to the petitioners. At that time no
agreement
was made when the petitioners should have possession of the
premises, but the written contract provided that they
should have possession on or before August 5th. When Tidden
first spoke to Libbey about the Putnam Chambers he said he
had bought the lots on which both that and Stearns Chambers
were built, but Libbey said he did not know at that time
who had the legal title, but he found out later that Tidden
did not have it. * * * Upon the question of whether there
was any contract between the parties before April 14th,
Tidden testified that he made no contract with the
petitioners before that date, and had no definite contract
with them before August 2d, that he wanted them to have the
job if they could meet the estimates of other people, but
that he did not remember having such a conversation with
Libbey on April 12th, or that the latter proposed to do the
mason and carpenter work and the roofing for $71,000. I
find, however, that such a conversation did take place, and
that Tidden did say to Libbey that he would give him the
job, leaving the question of law as to whether such a
contractual relation existed between the parties prior
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