Savoie Quarry Const. Co. v. Ziman

• Decision Date: 29 November 1919
• Citation: 125 N.E. 167,234 Mass. 210
• Parties: SAVOIE QUARRY CONST. CO. v. ZIMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 210

125 N.E. 167

SAVOIE QUARRY CONST. CO.

v.ZIMAN et al.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 29, 1919.

Exceptions from Superior Court, Bristol County; Lloyd E. White, Judge.

Bill to enforce a mechanic's lien by the Savoie Quarry Construction Company against Louis D. Ziman and others. Decree dismissing the bill, and petitioner excepts. Exceptions overruled, and bill ordered dismissed.

Jennings & Brayton, of Fall River, for petitioner.

Charles P. Ryan, Frank A.Pease, and James H. Kenyon, Jr., both of Fall River, for defendants.

CARROLL, J.

This is a bill in equity to enforce a mechanic's lien for labor furnished under a written proposal made to the defendant Popkin to provide all the material and labor necessary to complete the mason work on three buildings, to be erected on the land of the defendant Ziman. This proposal was made June 15, 1915, and orally accepted by Popkin. The contract between Ziman and Popkin was not in evidence and no notice of it or of the written proposal from the plaintiff to Popkin was recorded in the registry of deeds. Labor of the value of $2,688.41 was furnished by the plaintiff between June 15 and December 20, 1915. Later, February 2, 1916, two days' labor of the value of $11 was supplied. On February 21, 1916, Popkin made an assignment for the benefit of creditors, and on March 29 of that year an involuntary petition in bankruptcy against him was filed. February 21, 1916, the plaintiff filed in the registry of deeds a statement of the amount due him and on April 12, 1916, Ziman conveyed the premises in question to the defendant Kauffman. April 21, 1916, the plaintiff brought this bill in equity praying that a subpoena issue under St. 1915, c. 292, that the premises be sold and the proceeds of the sale applied to its demand and the costs of enforcing the lien. In the superior court an order for a decree dismissing the bill was entered.

The plaintiff cannot recover under St. 1915, c. 292. That statute took effect January 1, 1916, and was intended to have a prospective and not a retroactive effect. See v. Kolodny, 227 Mass. 446, 116 N. E. 888;Ainslee v. Boscketti, 230 Mass. 577, 119 N. E. 959. The plaintiff's remedy for the work done under the proposal of June 15, 1915, so far at least as that performed in the year 1915 was concerned, was under the mechanic's lien law then in force. R. L. c. 197. It contends, however, that by virtue of St. 1915, c. 292, it is given an additional remedy to that provided in R. L. c. 197. Without intimating that there is force in this contention, the plaintiff cannot recover under St. 1915, c. 292, because that statute gives a lien to a subcontractor for labor performed or furnished or for materials furnished only when there is a written contract between the owner of the premises and the contractor, and notice of the contract is filed in the registry of deeds. Varnum v. Kogios, 233 Mass. 264, 123 N. E. 678;Pratt & Forrest Co. v. Strand Realty Co., 233 Mass. 314, 123 N. E. 771. There was no evidence that Ziman and Popkin entered into a written contract and no record was made of such a contract in the registry of deeds, as required by the statute. For these reasons the plaintiff cannot obtain relief under this statute, even if the work done in February, 1916, after St. 1915, c. 292, took effect, was done in good faith and in fullfilment of the original contract.

The plaintiff further contends that it is entitled to maintain a lien under St. 1915 for the labor performed in February, 1916. That statute, St....