Solmica of New England, Inc. v. Verreault
| Decision Date | 31 January 1975 |
| Docket Number | No. 6230,6230 |
| Parties | SOLMICA OF NEW ENGLAND, INC. v. Marcel VERREAULT, d.b.a. New England Engineering Co. et al. |
| Court | New Hampshire Supreme Court |
Sanders, McDermott & Kearns, Hampton (Peter F. Kearns, Hampton, orally), for plaintiff.
Calderwood & Ouellette and Stephen J. Dibble, Dover, for defendant Nicholas Karabelas.
Action by plaintiff Solmica to recover the value of materials sold to the defendant Marcel Verreault doing business as New England Engineering Co., with a special attachment upon the property of defendant Nicholas Karabelas under RSA 447:10 to secure a lien thereon for the value of these materials. Verreault did not appear and a default was entered against him. A hearing was held before Morris, J., to assess damages, and a verdict in the amount of $1,748.68 was returned for Solmica. In the same proceeding Solmica undertook to prove that the white vinyl smooth siding which it sold to New England Engineering, was delivered at the property of defendant Karabelas situated at 805 Central Avenue in Dover and applied to the dwelling thereon, and that there was an unpaid balance due for this siding.
To that end, plaintiff offered as an exhibit a contract between New England Engineering and Karabelas dated March 5, 1969, for the application of white vinyl siding at 805 Central Avenue. Solmica also offered as exhibits its invoices dated March 13, 17, 21 and April 8, 1969, for white vinyl siding billed to New England Engineering with the designation thereon motion for a nonsuit was granted. Plaintiff filed a motion that the court's order be set aside based in part on the exclusion by the trial court of the contract and invoices and also a motion for judgment and execution against Karabelas. Plaintiff's exceptions to the denial of these motions were reserved and transferred.
Defendant Karabelas maintains that the failure of Solmica to take proper exceptions to the exclusions of the exhibits as evidence against him forecloses consideration of the rulings on appeal. The single issue in the controversy between Solmica and Karabelas was whether the siding plaintiff sold to New England Engineering was delivered to the Karabelas property and applied to the dwelling on it. In such a situation this court has permitted a party to rely on a question of law which is apparent from the face of the record even though the usual rule requiring that an exception be saved to an adverse ruling has not been complied with. Gove v. Crosby, 100 N.H. 380, 128 A.2d 205 (1956); see Barton v. Manchester, 110 N.H. 494, 272 A.2d 612 (1970).
In order to establish a lien under RSA ch. 447 against the Karabelas property, Solmica was obliged to establish every factor essential to its validity. Tolles-Bickford Co. v. School, 98 N.H. 55, 94 A.2d 374 (1953); Rodd v. Titus Construction Co., 107 N.H. 264, 220 A.2d 768 (1966); 53 Am.Jur.2d Mechanics' Liens & 397, at 913 (1970). Delivery at, and application to, the Karabelas property of the white vinyl siding sold to New England Engineering were essential elements of the required proof. The manager of Solmica testified that it sold materials to siding contractors among whom was Marcel Verreault of New England Engineering. He further testified that in the general course of business, designation of the location where the materials were to be delivered was indicated on the invoices of the siding sold. The four invoices for white vinyl siding sold to New England Engineering offered in evidence bore the designation 'ship to Karabelas 805 Central Ave. Dover, New Hampshire.'
Defendant Karabelas testified that he owned the premises at 805 Central Avenue. He identified his signature on the contract between him and New England Engineering dated March 8, 1969, to cover the above property with vinyl siding...
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