E. A. Thompson Lumber Co. v. Heald

• Court: Maine Supreme Court
• Writing for the Court: Before WILLIAMSON; WEBBER
• Citation: E. A. Thompson Lumber Co. v. Heald, 170 A.2d 156, 157 Me. 78 (Me. 1961)
• Decision Date: 23 February 1961
• Parties: E. A. THOMPSON LUMBER CO. v. Robert A. HEALD, Beverly K. Heald and John MacMullen.

Page 156

170 A.2d 156

157 Me. 78

E. A. THOMPSON LUMBER CO. v. Robert A. HEALD, Beverly K. Heald and John MacMullen.

Supreme Judicial Court of Maine.

Feb. 23, 1961.

Richard B. Sanborn, Augusta, for plaintiff.

Lewis I. Naiman, Gardiner, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

WEBBER, Justice.

This was a bill in equity brought under the rules of practice in effect prior to December 1, 1959 to enforce a lien claimed under the provisions of Sections 34 and 38 of R.S. Chap. 178. Plaintiff furnished materials to the contractor MacMullen who was engaged to erect a garage building for defendants Heald. The justice below found evidence supporting a lien in the amount of $532.58 but disallowed as non-lienable an amount of $1,354.45, the value of materials not adequately shown to have been incorporated into the building. A personal judgment for the latter amount was ordered as against the defendant contractor. As a basis for appeal the plaintiff contends (1) that the evidence compelled a finding that plaintiff was entitled to a lien for the full amount of labor and materials alleged to have been furnished, and (2) that in any event the personal judgment ordered against the contractor should have been for the full amount of the claim inclusive of both lienable and non-lienable items.

Plaintiff recognizes the well established rule that one claiming a lien has the burden of proving that the materials furnished were incorporated into the building. Fletcher, Crowell Co. v. Chevalier, 108 Me. 435, 81 A. 578, 36 L.R.A., N.S., 871; Andrew v. Dubeau et al., 154 Me. 254, 146 A.2d 761. Plaintiff urges upon this court however, that the supplier of labor and materials should be aided by a presumption in such a case at this. The contention is that when a supplier has shown (1) that all the materials for which a lien is claimed were delivered to the construction site and charged to the designated job; (2) that construction emerges composed of materials of the type furnished; (3) that some of the materials furnished are specifically identified as having been incorporated into the construction; and (4) that all the materials furnished are necessary for and suitable to the completion of the building, a presumption arises that all the materials furnished did in fact enter into the construction and thus became lienable. The effect of such a presumption, according to the plaintiff, would be to shift to the owner the burden of proving that some part of the materials was diverted and did not become incorporated into the construction.

It may be said at the outset that such a presumption, if it were to be recognized by this court, could only have the effect of placing upon the defendant owner the burden of going forward with evidence sufficient to satisfy the factfinder that the non-existence of the presumed fact is as probable as its existence. The burden of proof does not shift. Hinds v. John Hancock Mut. Life Ins. Co., 155 Me. 349, 155 A.2d 721.

Should such a presumption be recognized? Of the several reasons which prompt the raising of presumptions (discussed at page 363 of 155 Me., at page 730 of 155 A.2d in Hinds), the plaintiff adopts that which is there stated as '(b) to require the litigant to whom information as to the facts is the more easily accessible to make them known.' Plaintiff has directed our attention to a number of cases collected in Annotations in 71 A.L.R. 110 and 39 A.L.R.2d 427 which recognize a rule of evidence tending to lighten the burden of proof required of materialmen in such cases. Many of these cases reached the appellate level after a finding by the factfinder favorable to the lien claimant and tend to leave unanswered the question whether the fact of delivery of suitable materials to the site should, in the absence of contrary evidence, compel the finding that all such materials were incorporated into the structure, or whether that fact should merely permit or justify such a finding if it is made. It is true that a number of these cases seem to use the word 'presumption' in its full technical sense. Others use the word more loosely. We are not persuaded, however, that a technical presumption with its compulsive aspect should be recognized. It is true that in the ordinary case the materials supplied to a contractor at a construction site are used in the building, but it is likewise true that in the ordinary case they are fully paid for by the contractor to whom the supplier extends credit in the first instance and no lien problem arises. In those more infrequent cases where lien claims become necessary it is often found that the contractor has proved unreliable either financially or otherwise. It is by no means uncommon for such contractors to manipulate materials in order to inflate credit or keep work in progress on several jobs at once. The average owner under present day conditions is not possessed of sufficient knowledge and skill to appraise accurately what is actually incorporated into a structure or what may have been diverted without his knowledge. Most materialmen are knowledgeable in such matters. Although proof of the four basic facts enumerated above should be deemed adequate to warrant a reasonable inference upon which an ultimate finding of incorporation might properly be based, we are not persuaded that any presumption exists which would compel the finding in the absence of any contrary evidence. We note that although the requirements of proof in lien cases have often been discussed, no prior opinion of this court has intimated or suggested that such a presumption might exist.

In the instant case the justice below did not see fit to find the ultimate and essential fact of incorporation as to the items disallowed. For that matter it is not clear that he was wholly satisfied that the four basic facts which might warrant an inference were proved by a fair preponderance of the evidence. The testimony given by plaintiff's witnesses was tinged with uncertainty. Defendant Heald on cross-examination without objection voiced the suspicion that material was diverted from his job. Admittedly he was only at the site an hour or two at a time and was in no position to observe all that took place. The weight to be given to the...