Otis Elevator Co. v. Finks Clothing Co.

• Decision Date: 12 March 1932
• Citation: 159 A. 563
• Parties: OTIS ELEVATOR CO. v. FINKS CLOTHING CO.
• Court: Maine Supreme Court

159 A. 563

OTIS ELEVATOR CO.

v. FINKS CLOTHING CO.

Supreme Judicial Court of Maine.

March 12, 1932.

Exceptions from Superior Court, Cumberland County.

Action by the Otis Elevator Company against the Finks Clothing Company. Judgment for defendant, and plaintiff brings exceptions.

Exceptions sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Gerry L. Brooks, of Portland, for plaintiff.

Harry S. Judelshon, of Portland, for defendant.

BARNES, J.

On exceptions.

Plaintiff brought its action at law to enforce a lien for labor and materials furnished in installing an elevator in defendant's building.

The case was heard by a referee "with right to except in matters of law reserved by both parties."

The contract of sale and installation contained among its terms the following: "The machinery, implements and apparatus furnished hereunder remain personal property and we retain title thereto until final payment is made, with right to retake possession of the same at the cost of the purchaser if default is made in any of the payments, Irrespective of the manner of attachment to the realty, the acceptance of notes, or the sale, mortgage or lease of the premises."

Subsequent to the installation of the machinery, defendant having received its discharge in bankruptcy, it is agreed that if execution issue against the defendant the same "is to be perpetually stayed by reason of said discbarge."

Before the referee defendant claimed, and now urges, that plaintiff has no lien because it did not claim a lien in its declaration as provided by law; that if the declaration is adjudged sufficient to establish a lien claim, such Hen can be found to have attached to such interest in the building only as defendant had on the date of the attachment and not to the land on which it stands; and, lastly, that because of reservation of title to the materials which it claims to have incorporated in the building any lien was waived or lost.

These several defenses were urged upon the referee, and he found for the defendant upon the defense last stated above.

When it was moved that the court confirm the report of the referee, plaintiff filed written objections to its confirmation and requested the court to rule that retaining title to the machinery and other materials furnished did not defeat plaintiff's lien.

The objections and requests of plaintiff were overruled, the report of the referee confirmed, and to the rulings and confirmation of the report the plaintiff excepted.

While it may be that the issue before us is but the narrow one as to whether or no agreement and assent that plaintiff retained in itself title to the personal property incorporated in the building until its bill for same and installment thereof is paid, we deem it well to discuss the three objections raised by defendant before the referee.

As to claim of lien in the declaration: The right in any plaintiff to a lien for labor performed and materials furnished is purely statutory.

In pursuing his action at law he must comply with statute regulations conferring that right. These are specified in R. S. chapter 105, and the requirement as to pleadings is expressed in section 66, "The declaration must show that the suit is brought to enforce the lien."

The first count in plaintiff's declaration sets out the written contract in accordance with which plaintiff agreed to furnish labor and materials.

From the agreed statement it appears that plaintiff installed an elevator in a Portland building which, with the land on which it stood, subject to rights of mortgagees, was owned by defendant and in its possession, and that there is due plaintiff "on account of said contract the sum of fifteen hundred and sixty dollars ($1560.00) with interest from the 15th day of October, 1930, together with costs of this action," and further, that the statutory notice was duly recorded.

The declaration continues as follows: "And the plaintiff avers that it has complied with all the terms and conditions of said contract, installed the materials and furnished the labor required to complete the contract, in the building located at 234 Middle Street, Portland, Maine," and proceeds: "That this suit is brought to enforce a lien for said sum of fifteen hundred and sixty dollars ($1560.00)."

In the second count plaintiff avers: "That this suit is brought to enforce a lien for the above sum ($1560.00) for labor performed and materials furnished by said plaintiff, upon the buildings owned and occupied by the said defendant, and situated on the southeasterly side of Middle Street in said Portland, and numbered 234 on said Street."

In regard to the sufficiency of the declaration as a lien claim: In an analogous case, assumpsit to enforce a lien claimed on logs, our court said:

"The writ is unskillfully framed, but still the meaning of the allegations may be easily enough understood.

"It must be regarded as sufficient for a lien-claim writ if it comes within the requirement prescribed by the act of 1862, which dispenses with the necessity of any allegations outside of the common forms of the common law, except that the declaration must disclose that the suit is brought to enforce a lien upon the property attached." Parks v. Crockett, 61 Me. 489, 497.

And in interpretation of lien statutes courts will "construe them liberally, to further their equity and efficacy, when it is clear that the lien has been honestly earned, and the lien claimant is within the statute." Shaw v. Young, 87 Me. 271, 32 A. 897, 898.

In harmony with our former adjudged cases, we hold the declaration in this case sufficient.

Although we have not a full and complete record before us, we find in the record, and by obvious inference therefrom, enough to...