Oakland Mfg. Co. v. Lemieux

Decision Date14 March 1904
Citation98 Me. 488,57 A. 795
PartiesOAKLAND MFG. CO. v. LEMIEUX et al.
CourtMaine Supreme Court

(Official.)

Exceptions from Supreme Judicial Court.

Androscoggin County.

Action by the Oakland Manufacturing Company against David Lemieux and land and buildings. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Argued before WISWELL, C. J., and WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

C. A. Knight for plaintiff. J. G. Chabot, for defendant.

D. J. McGillicuddy and F. A. Morey, for land and buildings.

POWERS, J. This is an action of assumpsit to enforce a lien upon land and buildings for materials furnished in the construction of the buildings, heard by the presiding justice, who found that the plaintiff had no lien. The last item in the plaintiff's account was furnished on January 12th, and the attachment was made 91 days thereafter, on Monday, April 13, 1903. The attachment must be made within 90 days after the last materials are furnished (page 251, c. 232, § 1, Pub. Laws 1897); but it is contended that, as the last day of the 90 days fell on Sunday, that day is to be excluded in the computation of time.

The decisions upon this subject are not entirely harmonious. Some courts of high authority sustain the plaintiff's contention. Before the separation of Maine from Massachusetts, however, it was decided in Alderman v. Phelps, 15 Mass. 225, that where the 30 days during which property attached on mesne process is held subject to execution expires on Sunday, the lien created by the attachment does not continue through the next day. The court there said: "The statute has limited the lien formed by the attachment on mesne process to thirty days from the rendering of the judgment it is not for this court to extend the term. Nor do we see any reason why the last day of the thirty should be excluded because it happens to be Sunday, rather than any or all of the Sundays during the time limited." That case is closely analogous to the one at bar, where the lien is given by the statute to be enforced by attachment, "which attachment shall be made within ninety days after the labor is performed or labors or materials furnished." Alderman v. Phelps has the same force as a decision of this court, and in Massachusetts it has been followed and cited with approval in numerous cases. Cunningham v. Mahan, 112 Mass. 58; Cooley v. Cook, 125 Mass. 406; Haley v. Young, 134 Mass. 364. In Cooley v. Cook, Gray, C. J., said: "Whenever the time limited by the statute for a particular purpose is such as must necessarily include one or more Sundays, Sundays are to be included in the computation, even if the last day of the time limited happens to fall on Sunday, unless they are expressly excluded, or the intention of the Legislature to exclude them appears manifest." In Haley v. Young, supra, it was held that, if the last day of the three years limited by the statute for the redemption of land from a mortgage falls on Sunday, a tender of the amount due on the mortgage upon the following day is too late. Field, J., in delivering the opinion of the court, said: "It is said that at common law, when the time for the performance of a contract according to its terms expires on Sunday, a performance on the following Monday is good. Hammond v. Am. Ins. Co., 10 Gray, 306. But this rule, whatever may be the extent of it, has not been applied to acts which by statute are required to be done within the time therein limited."

We are satisfied with the rule laid down in these cases. When a statute requires an act to be done within a certain number of days which must include one or more Sundays, if the...

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4 cases
  • Eagleson v. Town of Kennebunkport & Kennebunkport Conservation Trust
    • United States
    • Maine Superior Court
    • April 7, 2017
    ...not intend all uses that may be permissible in the underlying zones to be "permitted uses" in the RP Zone.See Oakland Mfg. Co. v. Lemieux, 98 Me. 488, 490, 57 A. 795, 796 (1904) ("It is fair to presume that if the legislature had intended such a result it would have expressed that intention......
  • Bellegarde Custom Kitchens v. Leavitt
    • United States
    • Maine Supreme Court
    • October 25, 1972
    ...as to the action at law the emphasizing words 'and not otherwise' or other similar words. Nevertheless, in Oakland Manufacturing Company v. Lemieux, 98 Me. 488, 57 A. 795 (1904) this Court construed chapter 232, section 1 and held that the statutory 90 day period during which such an attach......
  • Fogg v. Twin Town Chevrolet, Inc.
    • United States
    • Maine Supreme Court
    • November 2, 1937
    ...was a Sunday extended the time one day. If so, the bill was brought timely; otherwise, not. In Oakland Manufacturing Company v. David Lemieux and Land and Buildings, 98 Me. 488, 57 A. 795, it was held that when the last day of the ninety (in which to commence an action to enforce a lien upo......
  • Spencer v. Kimball
    • United States
    • Maine Supreme Court
    • March 18, 1904

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