Sexton v. Weaver

• Decision Date: 01 January 1886
• Citation: 141 Mass. 273,6 N.E. 367
• Parties: SEXTON v. WEAVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 273

6 N.E. 367

SEXTON

v.WEAVER.

Supreme Judicial Court of Massachusetts.

1886.

This was a petition to enforce a mechanic's lien. Hearing in the superior court, before BRIGHAM, C.J., without a jury, who found for the petitioner, and the respondent alleged exceptions. The material facts appear in the opinion.John L. Rice, for respondent.

Bosworth & Barrows, for petitioner.

W. ALLEN, J.

The petitioner was employed as a carpenter and foreman during the year 1883 by one Sheldon, who had contracts for building houses for the respondent, and for several other persons. Petitioner worked upon the different houses, and payments were made to him by Sheldon from time to time, on account of his work generally, but no account was kept of his work on the different houses, and no application of any payment was made for labor on any specified house. About January 1, 1884, Sheldon failed, and the petitioner's last work upon respondent's house was on January 5th. There was then due to him from Sheldon $192. He was paid three dollars a day, and he filed his certificate for lien, and account of amount due him for work, on respondent's house for 64 days' work, amounting to $192. In fact he had worked upon the house more than 64 days, but only one day after November, and only 14 days in November. During all the rest of November and December he was doing other work for Sheldon.

As the payments by Sheldon to the petitioner were all on general account and not appropriated, they would be applied to the earlier items, and would show that the petitioner was paid for all the labor he had performed, except the last 64 days. For so much of that as was upon the respondent's house he would have a lien upon it, but not for such as was upon the houses of others, and not for work on the respondent's house which had been paid for.

The respondent contends that the lien was dissolved by the failure to file a sufficient statement of account due. The account is general, for 64 days' labor from July 31st to January 5th, at three dollars a day. The first objection is that the days in which labor was performed are not specified. The statute requires a “statement of a just and true account of the amount due, with all just credits given.” The true amount, and not the items that make it up, is the material thing to be shown, and the items are not important for the purposes of the certificate, as they are in making a written proof of the account. We cannot hold that the statement is insufficient for the cause.

Another objection is that the statement does not include all the labor that was performed by the petitioner upon the house, with credits for payments admitted to have been made. A sufficient answer is that it does not include any labor for which payment is not claimed. That the petitioner had performed other labor which had been paid for is immaterial.

Another ground upon which it is argued that the statement is insufficient is that it includes about 40 days' labor which had been paid for. This appears to be true, and it would be fatal but for the provision of the statute that the validity of the lien shall not be affected by any inaccuracy in stating the amount due, unless it appears that the person filing the statement has willfully and knowingly claimed more than is his due. The petitioner apparently claimed the right to apply the payments made to him by Sheldon to the amount due for labor on other houses than the respondent's, and to leave the whole amount unpaid a charge on the respondent's house. That the facts stated in the exceptions show that he had not the right to do so is not conclusive in law that he willfully and knowingly claimed more than his due; and the statements in the exceptions, that the court did not find that the petitioner willfully and knowingly claimed more than was due, and that the certificate was a just and true account of his labors performed on respondent's house, with all just credits given, are conclusive that the validity of the lien cannot be affected by the excessive amount claimed. The respondent, in his original answer, sets up that one Beston had filed a petition in the superior court for a lien upon the same property, and that this petitioner had been duly notified of the filing of that petition. At a subsequent term, the respondent, by leave of court, filed a supplemental answer that the respondent on the nineteenth day of June, 1885, after the filing of her former answer, recovered judgment in the suit of Beston that the petition be dismissed. The petition of Beston was filed on February 4th, returnable at the March term. This petitioner did not appear in that suit, but filed his petition March 24th. So far as the pendency of the former suit was matter in abatement, the decision of the court below would be final; but the pendency of the suit is not alleged in the answer, and is not relied on in the argument as matter in abatement, but in bar, upon the ground that the statute is to be construed as authorizing but one suit to enforce all kindred liens upon the same property, and that, when a suit to enforce one lien is commenced, all kindred lien creditors are parties to it, and the authority to bring a suit given by the statute is exhausted. Under the supplemental answer, the respondent contends that the petitioner is a party to the suit of Beston, bound by the judgment for the respondent, and that the judgment is properly pleaded.

The question which has been argued by the parties as arising on the pleadings is whether a suit commenced by one creditor to enforce a lien, and prosecute to judgment for the respondent, in which another creditor who is served with...