McDowell v. Rockwood

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

182 Mass. 150

65 N.E. 65

McDOWELL et al. v. ROCKWOOD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 30, 1902

COUNSEL

Daniel L. Smith, Edwin C. Jenney, and Walter B. Grant, for petitioners.

Wm. H White, for respondent Conant.

OPINION

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 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 materials for which they claimed a lien, and that they did not, before furnishing said materials, give notice in writing to the owner of the premises, as required by section 3, c. 191, Pub. St.' The presiding justice refused so to rule, and ruled that all of the petitioners were entitled to maintain liens upon the premises for the amounts set forth in their petitions, respectively, and 'that said liens, and each of them, had priority over any right, title, or interest of the respondent in said premises,' and the respondent duly excepted. 'The court then ordered that the premises be sold for the purpose of satisfying the liens of the several petitioners, and the respondent, not waiving his exceptions, duly appealed.' The statute referred to in the request for a ruling expressly provides that no lien shall be maintained for materials, if the purchaser is not the owner, unless a notice in writing of an intention to claim a lien is given to the owner before the materials are furnished. This covers the case in which the claim is for materials only. It has repeatedly been held to apply also to cases in which labor and materials are furnished together under an entire contract, in which it is impossible to separate the price of the labor from that of the materials. French v. Hussey, 159 Mass. 106, 34 N.E. 362: Angier v. Distilling Co., 178 Mass. 163, 59 N.E. 630. In each of the first two cases before the court the labor and materials were furnished under an entire contract, and there is no attempt to separate the amount to be paid for labor from that due for materials. See Pub. St. c. 191, §§ 2-6 (Rev. Laws, c. 197, §§ 2-6). It is therefore clear that at the time of the conveyance of the real estate, and at the time of the making of the mortgage, a part of the materials under an entire contract having been furnished, there was no lien for any part of the labor and materials, because no notice in writing had been given of an intention to claim a lien for materials. It is equally clear that, as the title then stood, the petitioners, under their contracts, could not create a lien for materials.

The petitioners rely on the rule stated in Countermanche v Railway Co., 170 Mass. 50, 48 N.E. 937, 64 Am. St. Rep. 275, and ...