McDowell v. Rockwood

• Citation: 182 Mass. 150,65 N.E. 65
• Parties: McDOWELL et al. v. ROCKWOOD et al.
• Decision Date: 30 October 1902
• Court: United States State Supreme Judicial Court of Massachusetts

182 Mass. 150
65 N.E. 65

McDOWELL et al.
v.
ROCKWOOD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 30, 1902.

Exceptions from superior court, Suffolk county; Jas. B. Richardson, Judge.

Petitions by Robert H. McDowell and others against Edward D. Cobb and Jotham C. Rockwood and others to enforce mechanics' liens. Judgment for plaintiffs, and defendant Rockwood brings exceptions. Sustained.

Daniel [182 Mass. 152]L. Smith, Edwin C. Jenney, and Walter B. Grant, for petitioners.

Wm. H. White, for respondent Conant.

KNOWLTON, J.

These are three petitions to enforce mechanics' liens. The claims in two of them are for labor and materials furnished in the erection of a building under an entire contract for a stated price, and the other is for materials only. The contracts were with a person who was not the owner when they were made, nor during the early part of the time while they were being performed, although he has since become the owner. He has been defaulted in these suits, and the party now defending is a mortgagee who took his title after the contracts were made, and after performance of them was begun, but before it was completed. We may assume, in favor of the petitioners, that there was no error in the trial of the first two issues to the jury, and that, on the evidence and the findings, the petitioners would be entitled to a lien against the owner if the rights of the mortgagee had not intervened. The third issue presented a question whether the labor and materials were furnished with the consent of the mortgagee. He objected to the framing of this issue on the ground that it was immaterial, and appealed from the order of the court directing it to be framed. We may also assume in favor of the petitioners that the proceedings on the trial of this issue were free from error, except for the reason that the issue was immaterial. After the jury had given answers upon these issues favorable to the petitioners, there was a hearing before the court upon an agreed statement of facts and the issues and answers. It appearing that the contracts relied on by the petitioners were not with the owner of the real estate, and that no notice was given of an intention to claim a lien for materials, the respondent requested

[65 N.E. 66]

the presiding justice to rule that the title under the mortgage had priority over the claim of the joint petitioners, whose claim was for materials only, ‘for the reason that the owner of the premises was not the purchaser of the...