Maxim v. Thibault

• Decision Date: 18 December 1924
• Citation: Maxim v. Thibault, 124 Me. 201, 126 A. 869 (Me. 1924)
• Parties: MAXIM v. THIBAULT et al.
• Court: Maine Supreme Court

126 A. 869

MAXIM

v. THIBAULT et al.

Supreme Judicial Court of Maine.

Dec. 18, 1924.

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

Bill to enforce mechanics' liens by Edward F. Maxim against Ernest Thibault and others. From decree for plaintiff, defendants appeal. Modified.

Argued before CORNISH, C. J., and PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

L. J. Brann, of Lewiston, and Harry Manser, of Auburn, for appellants Thibault and others.

Benjamin L. Berman, of Lewiston, and Jacob H. Berman and Edward J. Berman, both of Portland, for appellant Bell.

D. J. McGillicuddy, of Lewiston, for appellee.

MORRILL, J. Bill in equity to enforce a mechanic's lien under R. S. c. 96, § 33, for materials and labor furnished in the repair and alteration of a hall in Dominican Block, so called, in Lewiston. The sitting justice adjudged that the plaintiff has a lien for $3,008.48, with interest from the date of the bill, upon the land and buildings described. The owners of the building appeal. Their contentions are confined to three points.

Consent of the owners. By indenture under seal dated October 26, 1922, the owners of the building, Thibault & Faucher, leased to one Hyman I. Glovsky, otherwise known as Hyman I. Bell, "the hall in the building numbered 145 on Lincoln street, known as the Dominican Hall," for a period of 5 years from November 1, 1922. This lease contained no provision as to assigning or subletting; on the following day Glovsky made and signed the following indorsement upon his copy of the lease: "Oct. 27, 1922. I assign this lease to Charles Turner," and delivered the lease to one Berman, who was interested with Turner in the undertaking, and at whose request Glovsky had obtained the lease from the lessors. No assignment was made upon the lessors' copy. Turner thereupon contracted with the plaintiff for the repairs and alterations of the leased premises, to fit it for use as a gymnasium and place of athletic exhibitions. The lease contained the following covenant: "It is hereby agreed that all repairs in said hall shall be done by and at the expense of the lessee herein." The materials and labor were furnished between November 9. 1922. and December 18, 1922, both inclusive, during the life of this lease, as the sitting justice found.

While the lease did not state the use of the hall contemplated by the lessee, the evidence clearly establishes that the lessors, or at least one of them, Mr. Thibault, knew the purpose for which the hall was leased. The lease itself gave notice to the lessors that repairs were contemplated and might be made. Mr. Thibault testifies in answer to his counsel: "I made the lease for him to make the repairs himself," and again upon cross-examination: "I can't make any objection, because I made the lease for them to make the repairs."

It seems, however, that from general knowledge alone that repairs were contemplated and were being made, the consent of the lessor is not to be inferred so as to charge his interest with a lien, but the evidence must go to the extent of showing knowledge of what work was actually being done, and that it was more than mere preservative repairs. Greenleaf & Sons Co. v. Shoe Co., 123 Me. 352, 356, 123 A. 36. The sitting justice found "that the owners, or one of them at least, had full knowledge that certain alterations and repairs were being made on the fourth floor of the building." This is a very conservative statement. The evidence goes to the extent of showing that Mr. Thibault knew that alterations to the extent of a substantial reconstruction of the interior of the fourth floor and the exits were contemplated and in progress to fit it for the use proposed, and was consulted about the changes.

The case is governed by Shaw v. Young, 87 Me. 271, 32 A. 897, and York v. Mathis, 103 Me. 67, 68 A. 746. The consent of the owners must be inferred from the language of the lease, their knowledge of what was contemplated and was actually being done, and their conduct.

The amount of the lien. The plaintiff's claim was $3,942, of 166 items; 36 items, aggregating $1,726.03, were for labor, the remainder, $2,215.97 was for materials. A jury trial being waived, the sitting justice heard the parties upon this issue without a reference to a master. The plaintiff was the only witness in support of the amount of the claim. He was unable to show what items of lumber or labor for which he charged actually went into the job. The contention of counsel for the owners in that respect is fully sustained by the evidence and the decision of the sitting justice. By agreement of the parties the court then chose Mr. Frank E. Tracy, a competent, impartial contractor and builder, who was "authorized and directed to make an examination and measurements of the alterations and repairs made by the plaintiff and an estimate of the cost of the labor required to make the same, and to report the result of his investigation for the enlightenment of the court and the parties." Mr. Tracy made a report which appears in the record in which he found the amount of the materials used to be $1,830.03 and for labor $1,153.16. The court adopted his figures as to the materials, deducting $174.76 for nonllen items. As to the labor item the sitting justice says:

"Realizing that the cost of labor may be somewhat more difficult to accurately estimate than the cost of material, in order to be on the safe side as to the cost of labor, I have added $200 to the estimate of Mr. Tracy, thereby allowing for labor $1,353.15."

Of this result counsel say upon the brief:

"We make no complaint, however, of the decision of the presiding justice upon the evidence as to the amount of labor and material. That is a matter upon which we have had a fair hearing."

They do contend, however, that a lien should be denied, because, to quote from the brief:

"It is clearly shown that the plaintiff has charged for very substantial amounts of material and for a great amount of labor which never went into the job—that for every $100 which honestly went into the building he has charged for enough additional labor and materials to make $124. Scattered through his bill there are items of lumber and charges for labor which were never furnished or performed. He has not undertaken to eliminate them, and no one else can."

A careful examination of the record fully justifies this arraignment by counsel. A claim must stand or fall substantially as made, unless inadvertence or mistake is shown (2 Jones on Liens, § 1408, and note); but, having agreed to the rather unusual method of determining the amount of material and labor which did actually go into the job, by the examination and report of an impartial examiner or assessor, we...