Street Lumber Co. v. Sullivan

• Decision Date: 29 March 1909
• Citation: 87 N.E. 905,201 Mass. 484
• Parties: STREET LUMBER CO. v. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 484

87 N.E. 905

STREET LUMBER CO. v. SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Hampden.

March 29, 1909

COUNSEL

M. L. Welcker, for petitioner.

Daniel E. Leary, Edwd. W. Beattie, Jr., and Geo. D. Cummings, for respondent.

OPINION

BRALEY J.

The respondent not having been the purchaser, the petitioner has no lien for the lumber furnished unless it gave the for the lumber furnished unless it gave the notice required by Rev Laws, c. 197, § 3, which provides that 'the lien shall not attach for materials unless the person who furnishes them, before doing so, gives notice in writing to the owner of the property to be affected by the lien, if such owner is not the purchaser of such materials, that he intends to claim such lien.' In Whitford v. Newell, 2 Allen, 424 426, where the effect of this requirement found in earlier legislation, which by re-enactment is still the law, was considered, it was held to have been the legislative purpose that the owner should have actual knowledge in advance of an intention to charge his estate with an incumbrance for materials, which were to be furnished wholly upon the authority, or with the consent of the contractor. St. 1855 p. 826, c. 431, § 1; Gen. St. 1860, c. 150, § 2; St. 1872, p. 248, c. 318, § 3; Pub. St. 1882, c. 191, § 3; Rev. Laws, c. 197, § 3. The petitioner does not claim that the defendant as the owner of the premises was personally notified, but the notice was addressed and delivered to her husband, who is found to have acted as her agent in contracting for the erection of the building with the exception of the brickwork, and by whom its construction was supervised. The notice, moreover, does not purport to be directed to the respondent, as the petitioner believed the title was in her husband, whom it intended to hold responsible as the owner of the land, but it later discovered he was acting only as agent. It is no doubt settled in the law of agency, as the petitioner contends, that notice to an agent of an undisclosed principal, where he is acting within the scope of his agency, is constructive notice to the principal, who must be charged with the agent's knowledge. A lien for materials, however, having been conferred solely by statute, does not come into existence unless the statutory conditions are strictly followed. Trask v. Searle, 121 Mass. 229; Fire Extinguisher Co. v. Chaplin, 183 Mass. 375, 378, 67 N.E. 321; Shelton v. Sears, 187 Mass. 455, 73 N.E. 666. In some jurisdictions it is provided that for this purpose notice either to an owner, or his agent is sufficient. Wickham v. Munroe, 89 Iowa, 666, 57 N.W. 434; Smith Anthony Stove Co. v. Steere, 65 Mo.App. 87; Laev Lumber Co. v. Auer, 123 Wis. 178, 101 N.W. 425; Jarden v....