Webber Lumber & Supply Co. v. Erickson

• Decision Date: 25 October 1913
• Citation: 216 Mass. 81,102 N.E. 940
• Parties: WEBBER LUMBER & SUPPLY CO. v. ERICKSON et ux.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 81

102 N.E. 940

WEBBER LUMBER & SUPPLY CO.

v.ERICKSON et ux.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 25, 1913.

Appeal from Superior Court, Worcester County; W. P. Hall, Judge.

Petition by the Webber Lumber & Supply Company against Fritz H. Erickson and wife for the establishment of a mechanic's lien. From a judgment for defendants, plaintiff appeals. Affirmed.

This proceeding was to enforce a mechanic's lien for materials furnished and used in the construction of a dwelling house on land owned by defendants as tenants in common.

C. A. Batchelder, of Fitchburg, for petitioner.

David I. Walsh, Thos. L. Walsh, and Chas. B. O'Toole, all of Fitchburg, for respondents.

HAMMOND, J.

One of the grounds of the defense is that the alleged lien never attached. The solution of the question hinges upon the sufficiency of the notice. If the notice was sufficient then the lien attached.

[1][2] The materials were not purchased by the respondents, who were tenants in common of the fee of the real estate in question, but were furnished to one Niskanen, apparently a contractor engaged in the construction of the building. No lien therefore could attach unless the petitioner, before furnishing the materials, gave a notice in writing to ‘the owner of the property to be affected by the lien’ of an intention to claim a lien. R. L. c. 197, § 3. The notice actually given was directed to Fritz alone, one of the tenants in common, and was served upon him alone. It stated that at the request of Niskanen the materials were to be used upon a building ‘for you upon your land on Elizabeth street, this city,’ and gave notice that a lien would be claimed ‘upon the premises' for all materials so furnished. Fritz, neither as a tenant in common nor as the husband of Sophia, had authority to accept service for her, nor is any authority to that end shown in the agreed statement of facts. See Street Lumber Co. v. Sullivan, 201 Mass. 484, 87 N. E. 905,16 Ann. Cas. 354. Sophia therefore did not receive the notice necessary for the establishment of a lien against her interest in the real estate, and therefore the lien claimed never attached to her interest. And that would be so whether the authority for the work came from her and Fritz, or from him alone.

[3][4] But it is contended by the petitioner that the notice to Fritz is sufficient at any rate to bind his interest, which was an undivided half. The term ‘owner’ as used in the first and third sections of the statute does not necessarily mean the owner in fee. It means the person by whose authority the work is done. And it may be that if such person be the owner of any legal interest in the...