Nash v. Commonwealth

• Decision Date: 02 September 1902
• Citation: 64 N.E. 690,182 Mass. 12
• Parties: NASH v. COMMONWEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 12

64 N.E. 690

NASH v. COMMONWEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 2, 1902

COUNSEL

A. E. Pillsbury and G. M. Palmer, for appellant.

F. C Nash, for appellee.

OPINION

HAMMOND, J.

After a rescript from this court overruling certain demurrers (174 Mass. 335, 54 N.E. 865), this case was heard upon its merits by three justices of the superior court, who found for the plaintiff in the sum of $4,254.68, and on April 9, 1901, a final decree was there entered for the plaintiff for that amount and costs. The case is now before us upon appeals by the defendant Casparis from this finding and from the decree.

The first objection made by the appellant is that the plaintiff before selling the cement to Smith & Burden, gave no notice that he intended to claim a lien. In support of this objection, the appellant argues that the statute was passed for the protection and convenience of the commonwealth; that it is a part of the laws relating to finance; that in 1878 when the statute was first passed, it was probably thought that possibly public liens might be maintained against public works, or at least that claims of such a nature might be made; that the purpose of the statute was to protect the commonwealth against such claims and to provide it with security against possible loss; and that there is no indication in the statute or in the context that it was intended to furnish an absolute guaranty of payment for all material used in public works. The appellant insists that from this view of the statute it follows that in order to prevail the plaintiff must show that he gave notice, as would have been necessary if the aqueduct had belonged to a private person.

We cannot assent to this general view of the purpose of the statute. It first appeared as St. 1878, c. 209, entitled 'An act to insure payment of wages earned and for materials used in constructing public buildings and public works.' It speaks of 'public buildings or other public works * * * upon which liens might attach for labor or materials if they belonged to private persons,' and it provides that it shall be the duty of the officers contracting in behalf of the commonwealth to provide security for the payment of certain laborers and materialmen. The title would seem to indicate that the purpose of the act was not to protect the commonwealth as a property owner against lienors, but to provide a way in which laborers and materialmen in certain cases could be made more secure as to their pay, and the language of the act implies that the lien laws as then existing were not applicable to public works, and hence the remedy therein provided.

Even if it be assumed that the statute provides only for the payment of such claims as could have been enforced against the property of a private person, it by no means follows that the lienor should have taken the steps required by Pub. St. c. 191, to fix the lien, as in the case of private ownership. If this had been a proceeding to enforce a lien against the property of a private person, it would have been necessary for the plaintiff, before furnishing the materials, to give notice to the owner of the structure that he intended to claim a lien (Pub. St. c. 191, § 3); and, within 30 days from the time he ceased to furnish the cement, to file the certificate required by section 16 of the same statute, and within 90 days to begin a suit for enforcing the lien. The mere recital of these steps is sufficient to show that it was not intended that they all should apply. Indeed, none of them applies. By virtue of the contract with Smith & Burden the plaintiff was bound to furnish cement for the work, and if the property had been that of a private owner he stood in a position to make his lien complete. It was possible for him to take steps, namely, to give the notice before furnishing the cement, to file the certificate, and to begin the suit within the required time. A lien might therefore have attached. When the contract to furnish the cement was made, the time had come when the plaintiff had it in his power by his own act to take the necessary steps, if the property was that of a private owner, to attach a lien. He was no more required to take the first step than the second or third. By virtue of his contract he was placed where the lien might attach for materials furnished, and the public work was of such a kind that if the owner had been a private person a lien might attach; and, even if the statute covers only those claims which by the act of the lienor may as against the property of a private person finally ripen into a lien, it is plain that the claim of the plaintiff is within that class. There was no need for notice before the materials were furnished that he intended to claim a lien.

The...