Palmer v. Lavers

• Decision Date: 17 June 1914
• Citation: 218 Mass. 286,105 N.E. 1000
• Parties: PALMER v. LAVERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 286

105 N.E. 1000

PALMER v. LAVERS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914

COUNSEL

George P. Bryant, of Boston, for appellant.

A. S Apsey, of Boston, for appellee.

OPINION

LORING J.

This is an appeal from a final decree enjoining the defendant from prosecuting an appeal from a judgment rendered by the Somerville police court establishing a mechanic's lien in favor of the plaintiff on land owned by the defendant. The case is before us on the evidence taken by a commissioner at the hearing in the superior court.

The defendant's principal contention is that the judge was wrong in finding for the plaintiff upon the evidence. The facts were, in substance, as follows: On August 3, 1910, the plaintiff filed a certificate claiming a mechanic's lien on certain land owned by the defendant, situated in Somerville. On August 23d the defendant's counsel, W. N Tuller, Esq., wrote to David T Dickinson, Esq., counsel for the plaintiff, who was then in Holderness, N. H., asking Mr. Diskinson if the plaintiff would be willing to release his attachment on the defendant's giving a bond for the lien. In that letter he said that the reason for the defendant's desiring to get a release of the mechanic's lien was:

'He wishes to change his temporary loan now into his permanent loan, and the existence of that lien prevents the completion of the transaction. * * * All we shall ask is that you prosecute your lien to the judgment, when it will be paid at once.'

On August 24th Mr. Dickinson wrote two letters, one to Mr. Tuller in answer to his letter of August 23d, and one to his associate in Boston, Mr. Woodman. In his letter to Mr. Tuller Mr. Dickinson stated:

'I assume that a prosecution of the lien to judgment in the lower court will be satisfactory, upon which judgment it [the amount due on the mechanic's lien] will be paid.'

In Mr. Dickinson's letter to his associate, Mr. Woodman, he wrote:

'I think this course, as is outlined, particularly the judgment in the lower court being final, helps to expedite matters for Mr. Palmer.'

On August 24th Mr. Tuller wrote to Mr. Dickinson a further letter in which he stated that the plaintiff was doing other work for Mr. Lavers, and that:

'It would aid Mr. Lavers in meeting this payment if the lien were released as above indicated. We would like to have you wire us at our expense if you are satisfied to have the lien released in the above way.'

On August 25th Mr. Dickinson sent a dispatch to Mr. Tuller in these words:

'I approve accepting Mr. Lavers' personal bond and releasing lien.'

There was an interview between Mr. Tuller and Mr. Woodman in Boston on the morning of August 25th. About this there was no dispute. There was also no dispute about the fact that after that interview a release was drawn by Mr. Tuller and subsequently executed by Mr. Palmer.

Mr. Woodman testified in terms that at this interview on the morning of August 25th Mr. Tuller agreed that the decision of the lower court should be final, and that payment would be made on such judgment being rendered.

Mr. Tuller in his testimony denied that such an agreement was made at that time, but he admitted that at that time the defendant did not contest the plaintiff's bill. Mr. Tuller also testified that he consulted on this matter every day with Mr. Lavers, who had an office adjoining his.

It was left somewhat in doubt, on Mr. Woodman's testimony, whether Mr. Dickinson's telegram of August 25th was before him and Mr. Tuller at their meeting on August 25th, when the agreement testified to by him was made; but he testified that all of the letters were then before them except (as we understand the evidence) Mr. Tuller's letter to Mr. Dickinson dated August 24th.

On these facts the judge of the superior court found that there was an agreement that the judgment in the lower court should be final, and that this agreement was made, not by Mr. Tuller as an attorney, but was authorized by the defendant himself. The exact wording of that finding is:

'And I am satisfied that at that time the defendant as well as defendant's counsel understood that the plaintiff would only release such mechanic's lien upon the giving of a bond which provided for the payment of the judgment obtained in the lower court.'

We construe this to be a finding that the defendant authorized the agreement, and that it was not an agreement made by the defendant's attorney merely as an attorney. The judge made this further finding:

'I do not necessarily find by that that it was intended by the parties that it [the...