Smith v. Norris

• Decision Date: 06 March 1876
• Parties: James F. Smith v. Benjamin P. Norris
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 58

James F. Smith v. Benjamin P. Norris

Supreme Court of Massachusetts

March 6, 1876

Argued November 12, 1875. [Syllabus Material] [Syllabus Material]

Suffolk. Petition by James F. Smith and John H. Le Cain to enforce a mechanic's lien under the Gen. Sts. c. 150, for work done upon a block of five houses on Dennis Street in Boston.

The certificate, filed by the petitioners in the office of the city clerk on March 7, 1873, set forth that the petitioners had a claim against William Eadie and Theodore G. Brown, late copartners under the firm name of Eadie & Brown amounting to $ 400, according to an account annexed and made part of the certificate. The first item of this account, under date of February 6, 1873, was: "For 247 3/4 days' labor on five houses on Dennis Street, in Boston, $ 1050." The other items were various credits, made in 1872, amounting to $ 650, leaving a balance of $ 400. The certificate then set forth that the claim was made for and on account of labor performed and furnished in the erection of five brick houses on land owned by Benjamin P. Norris, and situate on Dennis Street in Boston, and described their situation on the street; that the houses constituted one block; that the labor was performed and furnished in and upon said houses by virtue of a contract entered into on September 24, 1872, between the petitioners of the one part and Eadie & Brown of the other part, a copy of the contract being annexed and made part of the certificate;. ^[*] that the petitioners had performed and furnished labor under the contract upon said houses to the value of $ 1050, and had received the sum of $ 650, leaving a balance due of $ 400; that the completion of the work was stopped without any fault on the petitioners' part; and that they ceased laboring upon said houses on February 6, 1873. The petition also set forth a claim for extra work done on said houses in accordance with directions given from time to time by Eadie & Brown, amounting to $ 65, after deducting all just credits; and claimed a lien upon said houses and the land under them.

The case was sent to an auditor, who found that the respondent was the owner of the land described in the petition; that on August 20, 1872, he and Eadie & Brown made and signed the following contract under seal:

"Agreement of sale made and concluded this twentieth day of August, A. D. 1872, by and between Benjamin P. Norris, of Boston, in the county of Suffolk, of the first part, and William Eadie and Theodore G. Brown, both of said Boston, of the second part, witnesseth, that the said Norris agrees to sell and convey, and said Eadie & Brown agree to purchase, a certain parcel of land situated on the northwesterly side of Dennis Street in said Boston." Then followed a description of the land. "Said Eadie & Brown agree to pay for said land at the rate of one dollar per square foot, being sixty-eight hundred and four dollars in all, and interest as hereinafter stated. Said Eadie & Brown are to commence immediately to erect on said land five two-story and French roof brick dwelling houses, each measuring at least seventeen feet front by thirty-seven feet deep, with two-story bay windows, and each house containing ten rooms and cellar, and being fitted for two families, with separate gas-pipes for each family, to be finished in good style, and each house to cost not less than thirty-five hundred dollars above the land. And said Norris is to advance to an amount not exceeding two thousand dollars in money and materials for the building of each of the said houses, at such times and in such amounts as he shall deem safe and expedient, reference being had to the progress of the said buildings. Deed or deeds of said premises free from all incumbrances, shall be given within seven months from this date by said Norris, provided always said Eadie & Brown shall, within said period, pay to said Norris all of said purchase money, together with taxes and interest thereon from this date at the rate of seven and 3/10 per centum per annum; and all moneys advanced by said Norris, together with interest thereon, at the rate of eighteen per centum per annum, from the respective times when such advances are made, and the value in money of all materials furnished by said Norris or procured by his order or indorsement, together with such interest or expenses on the same as the said Norris may be obliged to pay. But if said payments are not made within said period of seven months, then this agreement is to be null and void."

Indorsed upon this contract was an assignment by the assignee in bankruptcy of Eadie & Brown, dated February 18, 1873, of all their rights in the contract to Isaac G. Caswell; and an agreement, dated February 21, 1873, signed by Norris, whereby he agreed to be bound, by all the covenants contained in the contract, to Caswell and one Weeks, as fully and completely as though the contract had been originally executed by them, and extending the contract to June 20, 1873.

The auditor further found that on September 24, 1872, Eadie &amp Brown, with the knowledge of the respondent, entered into the contract with the petitioners, as alleged in their petition; that the petitioners, with the knowledge and consent of the respondent, proceeded to build the houses as required by the contract; that most of the carpenter's work necessary to be done, before the houses were plastered, was done before December 12, 1872, on which day Eadie & Brown filed a petition in bankruptcy; that the petitioners were prevented from completing their contract with Eadie & Brown, by the failure of the latter to furnish the materials, as required by the contract; that some work was done by the petitioners after December 12, 1872, on one only of the houses, which work was done in good faith, with the expectation that they were to go forward and finish the work under the contract; that the labor on the houses ceased on ...