Moore v. Erickson

• Decision Date: 06 January 1893
• Citation: 32 N.E. 1031,158 Mass. 71
• Parties: MOORE et al. v. ERICKSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 71

32 N.E. 1031

MOORE et al. v. ERICKSON.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1893

COUNSEL

Wm.

B. Durant and John E. Farnham, for appellants.

W.B French, for respondent.

OPINION

FIELD C.J.

The agreed facts show that the petitioners would have been entitled to enforce a lien for the labor performed under their entire contract with McArthur, pursuant to Pub.St. c 191, § 2, ^[1] if they had completed the contract. The only question is whether they have lost the lien by not completing the contract under the circumstances stated. It appears that McArthur, who, as contractor with the respondent, made the contract with the petitioners, failed and told them that he could not pay them, and that they must look "to their lien on the house for their pay," whereupon the petitioners and McArthur "mutually rescinded their contract." At this time the petitioners "had not put in two hot-water boilers, and several faucets, and some other minor materials, which, under their contract, they were obliged to furnish;" but "after the said McArthur became insolvent, and that fact being known to the respondent, the petitioners offered to complete the contract at the expense of the respondent, but the latter refused." As the contract was rescinded by the contracting parties, there could be no action on the contract, but the petitioners, on the facts stated, could have maintained an action against McArthur for what the labor performed and the materials furnished by them were reasonably worth. Fitzgerald v. Allen, 128 Mass. 232. The petitioners made no contract with the respondent, but it must be taken, under our decisions, that their contract with McArthur was made by the consent of the respondent, within the meaning of Pub.St. c. 191, § 1. No lien could attach for the materials furnished by the petitioners, because they gave no notice in writing, in accordance with the provision of section 3, Id.; but the second section permits a lien for the labor, provided "that in no case shall such lien be enforced for a sum greater than the price agreed upon for the entire contract." This last-mentioned section makes an entire contract for labor and materials separable for the purpose of enforcing a lien against the owner of the land for the labor. It is applicable only to labor performed or furnished under an entire contract for an entire price but it is not required in this section that the contract shall be completely performed. If the petitioners have been prevented from performing the contract by the other party to it without fault on their part, they do not lose their right of action against that party, and we think that it was not the intention of the statute that they should lose their lien on the land for the labor. The respondent is protected if the petitioners cannot recover, in any event, against the land, more than the entire contract price, after deducting from that price all damages suffered by him by reason of their failure to complete the contract. Gogin v. Walsh, 124 Mass. 516, was decided on the ground that the statement of account which was filed was not in accordance with St.1872, c. 318, § 2. Smith v. Norris, 120 Mass. 58, closely resembles the case at bar, although the contract was for labor only; and whether Pub.St. c. 191, § 2, applies to such a contract or not, the same rule should apply to the...