Roxbury Painting & Decorating Co. v. Nute

• Decision Date: 23 May 1919
• Citation: Roxbury Painting & Decorating Co. v. Nute, 233 Mass. 112, 123 N.E. 391 (Mass. 1919)
• Court: Supreme Judicial Court of Massachusetts
• Parties: ROXBURY PAINTING & DECORATING CO. et al. v. NUTE et al.

233 Mass. 112

123 N.E. 391

ROXBURY PAINTING & DECORATING CO. et al.

v.NUTE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1919.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Petitions to enforce mechanics' liens by the Roxbury Painting & Decorating Company and others against Marietta Nute and another. Verdict was ordered for defendants, and plaintiffs except. Exceptions in the case of defendant Nute sustained, and in the case of the unnamed defendant overruled.

Richard J. Lane, of Boston, for plaintiffs.

Philip Nichols, of Boston (Hudson & Nichols, of Boston, of counsel), for respondents.

CARROLL, J.

The plaintiffs seek to establish a lien for labor performed and materials furnished in the repair and alteration of a building on land owned by the respondents Mrs. Young and Miss Nute (hereinafter called the owners), as tenants in common. The work was performed under contracts of the respondent Hathaway with the petitioners. Hathaway made no appearance; his deposition was taken on interrogatories propounded by the plaintiff and cross-interrogatories of the owners. In the superior court a verdict was ordered for the owners.

It was not denied that on March 25, 1914, the owners, by a contract under seal, agreed with Hathaway to sell him the premises for $5,000. Of this amount $250 was paid, and the agreement provided that the deed was to be delivered on or about April 20, 1914. The remainder of the purchase price was to be paid by a note of $2,500 secured by a first mortgage on the premises, payable to Marietta Nute (one of the owners) and by payment in cash of $2,250 on delivery of the deed. It was further provided that possession was to be given to Hathaway on delivery of the deed, the premises to be in the same condition as when the agreement was signed, ‘reasonable use and wear of the building thereon only excepted.’ Hathaway never paid or tendered payment of the $2,250 and the agreement was not carried out. The owners retained the $250 paid by Hathaway.

A few days prior to the execution of the agreement Hathaway contracted with the petitioners for extensive repairs and alterations upon the house, representing that he was the owner. The petitioners entered upon the premises and made the repairs and alterations. April 3, 1914, a second contract was made by Hathaway with the petitioner the Roxbury Painting & Decorating Company to do additional papering and painting, which work was performed. Work on the house was discontinued by the petitioner Duff on April 15, 1914, by the petitioner Lewis on April 18, 1914, and by the petitioner the Roxbury Painting & Decorating Company on April 24, 1914. There was evidence that Miss Nute was on the premises March 28, 1914, when the work was in progress, and when asked if ‘she wanted to come in’ said “No,' that * * * she would just walk around the house,' and again on April 11th she visited the premises and then went through the building and remarked ‘how beautiful the house looked and what a great deal of work was put in the house.’ Hathaway in his answers to interrogatories stated that ‘Miss Nute visited the place while the repairs were going on four or five times,’ and ‘spoke of the great change he had made in the appearance of the place; she said it looked like a palace’; that ‘he employed other mechanics to do other work on the house, amounting to about $1,700’; and that ‘the work of the petitioners was necessary to make the house habitable.’

Under R. L. c. 197, § 1, a lien may be established for labor performed and materials furnished in the repair of a building by virtue of an agreement with ‘or by consent of the owner of such building,’ or ‘ of a person * * * rightfully acting for such owner in procuring or furnishing such labor or materials.’ By the contract of sale dated March 25, 1914, the owners were to convey the premises to Hathaway on or before April 20, 1914; and if this contract was not subsequently modified, then the owners did not agree that Hathaway could charge them with responsibility for his contracts; and the work was not done with their consent within the meaning of the statute, and he was not rightfully acting for them in procuring or furnishing such labor or material. Mere notice that he intended to repair the house, and knowledge of the progress of the work and appreciation expressed over the improvements made, were not enough to establish a lien on the owners' estate. When an owner of land agrees to sell it and allows one who has agreed to buy it to take possession of the property, the owner does not thereby authorize such person to impose a lien on the land, unless by implication the owner authorized the purchaser to contract for the repair and alteration of the building. As stated in Hayes v. Fessenden, 106 Mass. 228, at page 230:

‘Their [the owners'] contract for a sale of the land to Fessenden, notice that he intended to build upon it, and knowledge of the progress of the work, charged them with no responsibility for it to any one.’ Saunders v. Bennett, 160 Mass. 48, 35 N. E. 111,39 Am. St. Rep. 456;Courtemanche v. Blackstone Valley St. Ry., 170 Mass. 50, 48 N. E. 937,64 Am. St. Rep. 275.

The petitioners contend that the contract of sale of March 25, 1914, was not the final agreement between Hathaway and the owners; that the owners knew that Hathaway could not carry out this agreement, and agreed that he should make the repairs and place a mortgage on the property, and pay them the purchase price out of the money secured by the mortgage. To support this contention they offered the evidence of Hathaway, that he talked with Miss Nute before and after March 25, 1914, about the necessity ‘of raising money required to purchase said estate by placing a mortgage thereon with some bank,’ and that Miss Nute agreed ‘to my raising a mortgage on the place, providing they were paid in full,’ and it was agreed ‘that I would repair the property in order to raise money to pay them off in full.’ ‘The house was unfit for any one to live in and we agreed that I would put it in condition; such would allow my raising funds to pay them off in full’; that he told Miss Nute ‘about the alterations that were being made, both before the agreement was...