Tramonte v. Wilens
| Decision Date | 16 July 1915 |
| Court | Connecticut Supreme Court |
| Parties | TRAMONTE v. WILENS. |
Appeal from Superior Court, Hartford County; Edwin B. Gager, Judge.
Action to foreclose a mechanic's lien by Domenico Tramonte against Joseph Wilens, who cross-complained, praying an adjudication that the lien was invalid. From a judgment for defendant on the complaint and cross-complaint, plaintiff appeals. Reversed and remanded.
The plaintiff entered into a contract with the defendant to construct for him a four-story brick building fronting west on Windsor avenue, Hartford, upon a lot bounded 50 feet on said Windsor avenue and 185 feet on Russell street, and described in the contract as a single lot. The defendant purchased this lot as a single lot. It was then and at the time of plaintiff's contract subject to two mortgages, each covering the entire lot.
The terms of the contract were as follows: Defendant was to pay plaintiff $6,000 during the progress of the work. On completion of building, defendant agreed to procure a first mortgage on said premises, and from the proceeds to pay the two mortgages and procure a second mortgage for $10,000 upon said premises, and to pay plaintiff the balance from these mortgages and to pay the balance of the contract price, with a third mortgage to plaintiff upon these premises.
The parties understood and intended that, so far as the contract and mortgage conveyances were concerned, this lot was a single lot. At the contract there stood on the easterly part of this lot a three-tenement dwelling. The building constructed under the contract, covered two-thirds of the entire lot, and there remained between the two buildings a strip of land 13 feet and 9 inches wide, in the center of which the defendant laid a sidewalk as a way in common for the tenants of each building to reach the rear entrance to their tenements, and the tenants so used the walk. Defendant evenly graded the lot not occupied by these buildings. Thy rear building was built up to the street line of Russell street; the front building to the street lines of Windsor avenue and Russell street. The buildings were not connected in any way, nor built nor adapted to be used together, and had nothing in common other than the use of the sidewalk. The plaintiff duly filed his mechanic's lien upon the entire lot.
The balance due upon the completed contract and covered by the lien, if valid, is $17,940.98, with interest from January 9, 1914. The inclusion in said lien of the whole lot instead of the part covered by the brick building and its appurtenances was done through mistake and in the belief that the plaintiff's lien covered the entire lot.
The defendant pleaded as a first defense that the contract provided for payment by mortgages and cash, and that the defendant had been and was ready to carry out the contract. The court found the defendant had not made out this defense.
The defendant pleaded as a second defense that the lien was invalid because the certificate included that part of the lot upon which the three-tenement brick house stood. The plaintiff replied to this defense by a general denial, and further pleaded that:
"If it is found as a fact that the plaintiff's lien covers too much property, the plaintiff is willing and hereby offers to release so much of the property as should not have been included therein."
Defendant also filed a cross-complaint making the allegations of these defenses part thereof, and prayed that the lien be adjudged invalid.
Albert C. Bill and Henry J. Marks, both of Hartford, for appellant. Louis H. Katz, of Hartford, for appellee.
WHEELER, J. (after stating the facts as above). The trial court adjudged that the mechanic's lien sought to be foreclosed was invalid and upon the cross-complaint should be set aside.
If one have a claim for more than $10 for materials furnished or services rendered in the construction of any building or its appurtenances by virtue of an agreement with or consent of the owner of the land upon which the building is erected, he may secure the same by a lien upon such land, building, and appurtenances. G. S. § 4135. The lien shall not be valid unless the person having such claim shall, within a stated time, lodge with the town clerk of the town, in which said building is situated, a certificate in writing describing the premises, the amount claimed as a lien thereon, and the date of the commencement of the services or the furnishing of materials.
If the language of the statute be taken literally and precisely, every certificate of lien, which does not accurately describe the premises and the amount claimed, would be invalid. While we have recognized that the statute is in derogation of the common law, we do not compel a strict construction of its requirements, as this would render the statute useless, but we give it a reasonable construction, so as to effectuate the purpose of the statute. Wilcox v. Woodruff, 61 Conn. 578, 585, 24 Atl. 521, 1056, 17 L. R. A. 314, 29 Am. St. Rep. 222; Balch v. Chaffee, 73 Conn. 318, 320, 47 Atl. 327, 84 Am. St. Rep. 155; Cronan v. Corbett, 78 Conn. 475, 478, 62 Atl. 662; Lindsay v. Gunning, 59 Conn. 296, 319, 22 Atl. 310, 11 L. R. A. 553. So construing the statute, we held that the incorrect statement of the claim will not invalidate the lien. Westland v. Goodman, 47 Conn. 83.
In Marston v. Kenyon, 44 Conn. 349, 356, we held that a lien filed by mistake for twice the amount due was not for that reason invalid. We said:
"While we do not intend to weaken the general rule that certificates of lien must speak the truth with reasonable accuracy, a rule in the interest of all persons giving subsequent credit upon the property, we do not think that a court of equity can be called upon to declare Mandeville's lien utterly void upon the motion of persons who have lost nothing by his mistake."
Again in Nichols v. Culver, 51 Conn. 177, 180, we said:
"And, where the person filing the certificate claims too great a sum, it will not invalidate his lien (certainly as between the parties), unless his misstatement was intentional." Id.; Halstead & Harmount Co. v. Arick, 76 Conn. 382, 387, 56 Atl. 628.
Our rule is the generally accepted one. Kneeland on Mech. Liens, § 165; Phillips on Mech. Liens, § 336.
Where the misstatement of the claim is intentional (that is, where the statement of the claim is intentionally false, or where it is fraudulent), the lien will be void; but, where it is the result...
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...of the amount due; Kiel v. Carll, 51 Conn. 440, 441 (1883); or an honest mistake as to the quantity of land. Tramonte v. Wilens, 89 Conn. 520, 524, 94 A. 978 (1915).16 The trial court summarized the ownership of the three parcels as...
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