Norton v. Clark

• Decision Date: 28 March 1893
• Citation: 85 Me. 357,27 A. 252
• Parties: NORTON v. CLARK.
• Court: Maine Supreme Court

27 A. 252

85 Me. 357

NORTON

v. CLARK.

Supreme Judicial Court of Maine.

March 28, 1893.

(Official.)

Exceptions from supreme judicial court, Hancock county.

Action by Hiram M. Norton against John E. Clark to enforce a mechanic's lien on realty. Plaintiff had judgment, and defendant brings exceptions, and moves for a new trial. Motion and exceptions overruled.

The suit was brought by the party furnishing labor and materials against the builder or contractor, who is in insolvency, and the building and land on which it stands.

The presiding justice, in his charge to the jury, among other things, instructed them as follows, viz.:

"I instruct you that when the owner of the land and buildings erected contracts with the builder, as in the present case, to construct a house upon the owner's land, and the builder employs workmen and contracts for materials entering into the construction of the house, the consent of the owner of such building may properly be implied from the contract under which the house was built." Referring to the stipulation as to liens in the written contract between the builder and the owners, he said: "I instruct you that other parties having no knowledge of the terms of that contract would not be bound by its terms or stipulations, although John E. Clark [the contractor] might be bound by this in relation to enforcement of his lien. * * * I instruct you, from the evidence in this case bearing upon that question, that if Hiram M. Norton [the plaintiff] is otherwise entitled to a lien upon the building, he is not a subcontractor in such a way as to prevent him from maintaining a lien for the labor or materials furnished by him entering into the construction of this cottage and appurtenances."

The jury returned a verdict for the plaintiff, and the defendant excepted to the foregoing instructions. He also filed a motion for a new trial.

Deasy & Higgins, for plaintiff.

Bedford E. Tracy, for owner.

EMERY, J. Under our statute of liens (Rev. St. c. 91) the claimant of a lien for labor or material performed or furnished in erecting a building must establish as a proposition of fact that he performed or furnished the labor or material, either by virtue of a contract with the owner of the building, or by the consent of such owner. In these cases before us, the plaintiff sought to establish the alternative fact, viz. that the labor and materials were performed and furnished by the consent of the owner.

He performed and furnished the...