Pineland Lumber Co. v. Robinson

Decision Date25 January 1978
Citation382 A.2d 33
PartiesThe PINELAND LUMBER CO. v. John W. ROBINSON, Patricia R. Robinson, Androscoggin County Savings Bank andNorman Rioux.
CourtMaine Supreme Court

Platz & Thompson by Philip K. Hargesheimer (orally), Lewiston, for plaintiff.

Isaacson & Isaacson by Robert S. Hark (orally), Lewiston, for defendants.


DUFRESNE, Active Retired Justice. 1

This is an appeal from a judgment entered in the Superior Court (Androscoggin County) dismissing the plaintiff's complaint which seeks to enforce a materialmen's lien against the real estate of the defendants, John W. Robinson and Patricia R. Robinson pursuant to 10 M.R.S.A., §§ 3251-3265. At issue before us is the validity of the plaintiff-subcontractor's materialmen's lien statement for materials supplied in the "erecting, altering, . . . or repairing" of the Robinson house pursuant to 10 M.R.S.A., § 3253. 2 The Robinsons challenged its validity on the ground that the lien claim was not in compliance with the statutory mandate requiring such lien statement to be "subscribed and sworn to by the person claiming the lien, or by someone in his behalf." We affirm the dismissal judgment of the Superior Court and deny the plaintiff's appeal.

In the spring of 1974 the plaintiff, The Pineland Lumber Co. (Pineland), contracted with the defendant, Norman Rioux, doing business as Reo Construction Co. (Contractor), and agreed to furnish him building materials for use in the erection of a home, which Rioux had contracted to build for the Robinsons. The Robinson property is located in the City of Auburn. On July 8, 1974 Pineland timely filed in the office of the register of deeds in and for the County of Androscoggin a notice of lien against the Robinson property, which it contends satisfies the requirements of 10 M.R.S.A., § 3253. Pineland subsequently brought the instant complaint pursuant to 10 M.R.S.A., § 3255 to enforce its purported lien against the Robinson property in its endeavor to recover the value of the supplies furnished Rioux, the contractor, joining as party defendant the mortgagee bank which had financed the Robinsons in the building of their dwelling-house.

The pertinent parts of the plaintiff's notice of lien claim filed pursuant to 10 M.R.S.A., § 3253 in the office of the register of deeds, the record of which was admitted in evidence, read as follows:

"I, KENNETH A. SMALL, of Auburn, Maine, President of THE PINELAND LUMBER CO., a Maine corporation located in Lewiston, Maine, certify on oath that the following is a true statement of the amounts due to THE PINELAND LUMBER CO., for labor done and materials furnished to NORMAN RIOUX of Lewiston, Maine, (d/b/a REO CONSTRUCTION CO.) for incorporation in a building owned by JOHN W. ROBINSON and PATRICIA R. ROBINSON of Auburn, Maine . . . , situated in Auburn, in the County of Androscoggin and State of Maine upon a certain lot or parcel of land, . . . , bounded and described as follows:

The materials furnished are as follows:

The first materials were furnished on March 6, 1974, and the last were furnished on May 29, 1974, as shown by the above statement.

All materials were furnished with the consent of the owner.

By virtue of the foregoing, a lien is claimed upon said building and said land.

Dated at Lewiston, Maine this eighth day of July, 1974.


By Kenneth A. Small




July 8, 1974.

Then personally appeared the above named, KENNETH A. SMALL, President of THE PINELAND LUMBER CO., and acknowledged the foregoing instrument to be his free act and deed in his said capacity and the free act and deed of said corporation.

Before me,

Lois A. Buschmann

Justice of the Peace"

Thus, the issue is, whether the reference statement of lien claim was fatally defective for failure to have affixed to it a jurat instead of the certificate of acknowledgment which it exhibits.

Section 3251 of Title 10, M.R.S.A. provides that "(w)hoever performs labor or furnishes labor or materials . . . in erecting, altering, moving or repairing a house, building or appurtenances, . . . by virtue of a contract with or by consent of the owner, has a lien thereon and on the land on which it stands and on any interest such owner has in the same, to secure payment thereof, with costs. . . ." Hence, the materialmen's lien, wholly of statutory origin, has its onset as such from the moment the materials furnished by the subcontractor are used in erecting, altering or repairing the building involved, provided the same is done by consent of the owner. See Witham v. Wing, 108 Me. 364, 373, 81 A. 100 (1911). But, at that stage the lien is inchoate only; and, where there is no privity of contract between the owner and the materialman, such lien will not ripen, but "shall be dissolved," unless the materialman records his lien-claim statement in the form provided by 10 M.R.S.A., § 3253 in the office of the register of deeds for the county in which the building is situated within the time fixed therein and unless he brings his action to enforce his lien within the time fixed by 10 M.R.S.A., § 3255.

Our Court has construed the time strictures of our materialmen's lien statute strictly and has held that, since the Legislature saw fit to provide that this special right created in favor of materialmen should exist only during a limited period of time, the courts are without jurisdiction to entertain actions for its enforcement when the period of its availability has expired. Bellegarde Custom Kitchens v. Leavitt, Me., 295 A.2d 909 (1972); Pendleton v. Sard, Me., 297 A.2d 889 (1972); Morin v. Maxim, 146 Me. 421, 82 A.2d 789 (1951).

Notwithstanding the rule of strict construction adhered to respecting the time within which notice of the lien claim must be filed for recording and action to enforce the lien must be filed with the clerk of courts, our Court has stated that it now will construe such statutes 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." (Emphasis provided). See Andrew v. Bishop, 132 Me. 447, 172 A. 752 (1934); Otis Elevator Company v. Finks, 131 Me. 95, 159 A. 563 (1932); Shaw v. Young, 87 Me. 271, 32 A. 897 (1895).

The statute itself has called for liberality of interpretation respecting the contents of the subscribed and sworn to statement of lien claim, by providing that

"(n)o inaccuracy in such statement relating to said property, if the same can be reasonably recognized, or in stating the amount due for labor, materials or services invalidates the proceedings, unless it appears that the person making it willfully claims more than his due." 10 M.R.S.A., § 3254.

See Durling v. Gould, 83 Me. 134, 21 A. 833 (1890); Foss v. Desjardins, 98 Me. 539, 57 A. 881 (1904).

Even so, as stated in Andrew v. Bishop, supra, because the origin of the materialmen's lien is statutory and was unknown at common law, every jurisdictional requirement must be met and all conditions precedent as prescribed by statute must be complied with, before the lienor can prevail. In other words, the lienor must bring himself within the statute.

Thus, it appears that our Court has articulated a dual standard in its approach to the materialmen's lien statute. The Oregon Court has adopted a similar dual interpretive position respecting its statute, which is as follows:

"It is well established in this state that because the right to a lien is purely statutory, a claimant to such a lien must in the first instance bring himself clearly within the terms of such law. The statute is strictly construed as to persons entitled to its benefits and as to the procedure necessary to perfect the lien. . . . However, when the claimant's right to a lien has been clearly established, the law will be liberally interpreted toward accomplishing the purposes of its enactment." Anderson v. Chambliss, 199 Or. 400, 262 P.2d 298, 300 (1953).

To perfect his lien claim and bring himself within the statute, the claimant, who furnishes materials in the erection, alteration or repairing of a building and who has no privity of contract with the owner, but does so furnish the materials by consent of the owner, such as the plaintiff subcontractor in the instant case, must file in the office of the register of deeds, as required by the lien statute, within 60 days after the materials are furnished, a true statement of the amount due him, with all just credits given, together with a description of the property intended to be covered by the lien sufficiently accurate to identify it, and the names of the owners, if known; which statement shall be subscribed and sworn to by the person claiming the lien, or by someone in his behalf.

In Northeast Investment Co., Inc. v. Leisure Living Communities, Inc., Me., 351 A.2d 845 (1976), we recognized the serious potential for substantial harm to an owner-defendant in connection with prejudgment attachments of his real estate. Similar policy considerations underlie the application of the strict construction rule to the various steps made necessary by the statute to preserve a materialmen's lien. Indeed, such a lien effectively deprives the owner of his ability to convey a clear title while the lien remains outstanding; the credit of the owner of the property subjected to the lien is impaired; the claim of lien may be used against the owner as a coercive means toward settlement of the demand.

The statute requires the statement to be subscribed. Our Court in Stratton v. Shoenbar, 10 A. 446 (Me.1887) has construed the statute as contemplating a written document to which there must be a writing of the claimant's signature for the purpose of attesting the correctness of the statement.

The statute further requires the statement to be "sworn to." The term "sworn to" implies that the subscriber...

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