Savoy v. Dudley

• Citation: 168 Mass. 538,47 N.E. 424
• Parties: SAVOY et al. v. DUDLEY et al.
• Decision Date: 14 June 1897
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 538

47 N.E. 424

SAVOY et al. v. DUDLEY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 14, 1897

COUNSEL

C.F. French, for appellant.

Waltham Co-operative Bank.

John L Harvey, for appellees.

OPINION

KNOWLTON J.

The questions in this case are between claimants of liens for the work done in the erection of a building and the mortgagee of the building. It is provided that a "lien shall not avail or be in force against a mortgage actually existing and duly recorded prior to the date of the contract under which the lien is claimed." Pub.St. c. 191, § 5. It has been decided that the contract referred to in this section is the contract of the party claiming the lien, and not the contract of a prior contractor for whom the claimant is working. Batchelder v. Hutchinson, 161 Mass. 462, 37 N.E 452; Bowen v. Phinney, 162 Mass. 593, 39 N.E. 283. The principles stated in Batchelder v. Hutchinson are decisive of the present case. The original contract for the erection of a building would fix the date from which the lien of the original contractor would have precedence over any mortgage subsequently recorded. The rights of one of his employés in this respect would be fixed from the date when the employé contracted to work on the building. If the employé was a journeyman, hired only to work wherever his employer might put him, and the employer was building several houses at the same time, his agreement would not become a contract to work upon any particular building that would be effectual to give him a lien upon it until he was set to work on that building. It is usual for builders who are constructing several houses at the same time to change individual employés from one job to another, as the nature of the business and the exigencies of the work from time to time make it desirable for them to do. When one is under a contract with a builder, who is erecting numerous houses, to work upon any house where the builder chooses at any time to put him, the contract fairly to be implied when he is set to work upon a particular house is to work upon it as much of the time as the builder chooses to keep him there until it is finished. For various causes his work may be interrupted from time to time. If he is a carpenter, it may be necessary to suspend his part of the work until the plasterers or other mechanics have done their part. He may be obliged to stop on account of illness, or the interests of his employer may make...