Richards v. O'brien

• Decision Date: 18 May 1899
• Citation: 53 N.E. 858,173 Mass. 332
• Parties: RICHARDS v. O'BRIEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 332

53 N.E. 858

RICHARDS v. O'BRIEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1899

COUNSEL

James

A. McGeough and Lee M. Friedman, for petitioner.

Albert E. Clary, for respondents Geo. A. Reed and John F Hutchinson.

OPINION

HOLMES J.

This is a petition to enforce a lien for lumber and materials which were furnished for the erection of four buildings. They were furnished under one contract, made on March 5 or 6, 1895. The buildings were upon a tract of land, the legal title to the whole of which was in one O'Brien at that date; but the land was divided into lots numbered 26, 27, 28 [173 Mass. 333] and 29 on a certain plan, and No. 26 was subject to a mortgage, which since has been foreclosed. The respondent Reed has the title to this lot, and it is admitted that the lien cannot be maintained against it. The contest is between the petitioner and Reed, as holders of titles by foreclosure of mortgages of later date than March 6, 1895.

The petitioner sold the materials to James V. Steele, and gave no notice to O'Brien, the holder of the legal title. If therefore, Steele was not O'Brien's agent, and if O'Brien was the owner, and Steele was not, within the meaning of Pub.St. c. 191, § 3, then the petitioner cannot enforce his lien against a respondent who took mortgages from the owner, and is entitled to stand in his shoes.

Issues were submitted to the jury, and one of them was whether at the time when the petitioner furnished the materials O'Brien had any beneficial interest in the land, or held it for the benefit of Steele. The answer was "No; he held it for James V. Steele." At a later stage the case was further heard by the chief justice of the superior court without a jury, for the purpose of determining whether Steele's contract was made with the consent of O'Brien, or ratified by him, and such other issues left undecided by the jury as the court might deem material. The chief justice found that the purchase was not made on behalf of O'Brien, and ordered the petition to be dismissed as against the respondent Reed. The petitioner excepted.

The finding of the jury that O'Brien held the land for Steele is too indefinite to exclude a subsequent finding by the chief justice that Steele had no such relation to the land as to make him owner in the sense of the statute. As the chief justice made no ruling upon the point, except to refuse to rule, as matter of law, that Steele was owner, we cannot revise his conclusion. It is enough to say with regard to the ruling refused that it does not appear what evidence the chief justice believed to be true. In this state of the case it is unnecessary to consider what would constitute a man an owner, so far that notice to him would be good. But it is pretty plain under our decisions, however it may be elsewhere, that, as against holders of mortgages from O'Brien, Steele cannot have been such an owner. Peabody v. Society, 5 Allen, 540, 542; Hayes v Fessenden, 106 Mass. 228, 231.

...