Witham v. Wing
| Decision Date | 07 October 1911 |
| Citation | 108 Me. 364,81 A. 100 |
| Parties | WITHAM v. WING et al. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Kennebec County, in Equity.
Bill in equity by Charles B. Witham against Flora J. Wing and others. On exceptions and appeal by one of defendants after decree for plaintiff. Exceptions overruled, appeal dismissed, and decree affirmed.
Bill in equity brought by the plaintiff, under the provisions of Revised Statutes, chapter 93, § 33, against Flora J. Wing, L. B. W. Wing, G. Harold Grant Wing, and the Lewiston Trust & Safe Deposit Company, to enforce a lien upon land and certain buildings thereon, situate in Farmingdale, for labor and materials furnished in altering and repairing said buildings. The last-named defendant was the mortgagee of the premises. The case went to the law court on exceptions and appeal by defendants.
Argued before SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.
George W. Heselton, for plaintiff.
Oakes, Pulsifer & Ludden and Eaton, Keene & Gardner, for defendants.
This is a bill in equity, brought by Charles B. Witham, to enforce a lien upon land and buildings thereon, situated in Farmingdale, owned by Flora J. Wing, for labor and material furnished in altering and repairing said buildings.
Paragraph 6 of the bill alleges that, by virtue of a contract between the plaintiff and the defendant G. Harold Grant Wing, a son of Flora J. Wing, who is alleged to be the owner of the land and buildings, executed for said G. Harold Grant Wing by his attorney, Charles C. Keene, the plaintiff furnished material and labor, all of which entered into and were used in erecting, constructing, altering, and repairing the buildings upon which the lien is claimed, and refers to Exhibit A, which reads:
By discount in not furnishing door and stair rail as per contract
$ 18 00
By cash
$218 00
Balance due
$582 00
Paragraph 9 of the bill reads as follows:
"That, by virtue of a contract with the said G. Harold Grant Wing, Flora J. Wing, and L. B. Wing, and with the knowledge and consent of said owner and mortgagee, the plaintiff performed certain other labor, and furnished certain other labor and materials, and made certain changes in the specifications of said written contract, all of which are mentioned and described in the statement hereunto annexed and made a part hereof and marked 'Exhibit B,' all of which entered into and were used in altering, constructing and repairing the building located on said lot."
Exhibit B contains 26 items for labor and material furnished from March 28th to May 2d, inclusive. The bill was filed in the clerk's office in Kennebec county, and subpœna issued, as prescribed by the rules of court, to Flora J. Wing, L. B. Wing, G. Harold Grant Wing, and the Lewiston Trust & Safe Deposit Company. The defendants filed an answer with a demurrer therein. Afterwards, with the consent of the defendants, an amendment was filed and allowed. So much of the amendment as is material is as follows:
"All the labor and material referred to in Exhibit A of the plaintiff's bill, for which the plaintiff seeks to recover, were furnished by the plaintiff by virtue of and in pursuance of a contract with the said G. Harold Grant Wing, and the other contracts alleged in the plaintiff's bill to have been made by G. Harold Grant Wing, Flora J. Wing, and L. B. Wing, as stated in paragraph 9 and Exhibit B of the plaintiff's bill, were merely additional to and modifications of the said original contract with G. Harold Grant Wing, mentioned in item 6 of the plaintiffs bill, and were made by his authority and with the consent and knowledge of the owner."
The case was afterwards set down for hearing and was heard, as appears by the record, upon amended bill, answer, admissions of record and proof. The justice who heard the case dismissed the bill as to the Lewiston Trust & Safe Deposit Company and L. B. Wing, with costs for each, sustained the bill against G. Harold Grant Wing for $641.46, with interest and cost, with a lien upon the buildings and land described in the bill, and ordered the property sold to satisfy the judgment. The defendant G. Harold Grant Wing claimed an appeal. The case is before the court upon exceptions and appeal.
The plaintiff offered in evidence a copy of the record of the town clerk of the town of Farmingdale, where the property in question is located, which was admitted, subject to objection and exception by the defendant. This was a record of the lien statement filed by the plaintiff in the town clerk's office, under the provisions of section 31, c. 93, R. S., in his attempt to preserve his lien, within 60 days of the time he ceased to labor or furnish material in the construction, altering, and repairing the buildings. The objection was that it was a variance, and did not set forth such a lien statement as corresponded to the claim in the bill.
It contained all the necessary statements prescribed by the statute to preserve the lien —a statement of the amount due, credits given, a description of the property sufficiently accurate to identify it, the name of the owner—and was subscribed and sworn to. In addition, it contained the statement that the material and labor were furnished by virtue of a contract with G. Harold Grant Wing and L. B. Wing, upon the dwelling house described in the bill, owned by Flora J. Wing.
The defendant contends that by the statement in said claim that it was "for labor done and materials furnished by virtue of a contract with G. Harold Grant Wing, of Portland, in the county of Cumberland and state of Maine, and L. B. Wing of Farmingdale, in the county of Kennebec," afterwards followed by a charge of $800 for making a piazza on the house and furnishing materials, as per contract dated March 21, 1910, and by the further statement, "to other work and other materials furnished by contract with G. Harold Grant Wing and consent of the owner," two separate lien contracts are shown, and that the plaintiff cannot prove and recover in this action judgment against G. Harold Grant Wing and the land and buildings mentioned upon his individual contract, and upon the joint contract of G. Harold Grant Wing and L. B. Wing.
The statute does not require the claim filed in the town clerk's office to contain the name of the person with whom the lienor contracted. The paper was offered in evidence to show that the plaintiff had complied with the statute in regard to filing his statement in the town clerk's office within 60 days of the time he ceased to labor or furnish material, and was admitted in evidence for that purpose. It was admissible for no other purpose, when offered by the plaintiff. If it contained more than the statute required, it still contained all the statute required, and was admissible for the purpose of proving that the plaintiff had filed the statement required by law. The fact that the plaintiff stated therein that the work was done and the material furnished by virtue of a contract with G. Harold Grant Wing and L. B. Wing, not being required by statute, would not defeat the lien, but would be evidence that the defendants might use to impeach the testimony of the plaintiff, when he claimed that the contract was made with G. Harold Grant Wing individually, and was undoubtedly used for that purpose at the argument. In order for the plaintiff to maintain his case, it was necessary for him to prove that he had filed in the town clerk's office a certificate containing the statements prescribed in section 31, c. 93, R. S., and the record was offered and admitted to prove that he had complied with the statute, not as proof of his claim, but as proof that the lien claimed had not been dissolved by his neglect to file the statement required by statute within 60 days from the time he had ceased to labor or furnish material.
The case of Thurston v. Schroeder, 6 R. I. 272, cited by the defendant, does not apply. That was a petition (corresponding to the bill in equity in this case) for a lien filed against two persons, as joint contractors, for work done and material furnished by the petitioner, and the court held there was not sufficient evidence submitted to prove that the contract, as set forth in the petition, was made by the two respondents, and that the plaintiff suing upon a joint contract of Patterson and Schroeder had, by their written evidence, showed only a several contract with Patterson, which their parol evidence had no tendency to vary. In other words, the court held that all the evidence introduced by the plaintiff had failed to prove the contract alleged. In this case the claim filed in the town clerk's office was not offered or received as evidence of the contract. The defendant's position that a different contract was proved than the one alleged could only be taken after the evidence was all in, at...
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Pineland Lumber Co. v. Robinson
...used in erecting, altering or repairing the building involved, provided the same is done by consent of the owner. See Witham v. Wing, 108 Me. 364, 373, 81 A. 100 (1911). But, at that stage the lien is inchoate only; and, where there is no privity of contract between the owner and the materi......
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Usen v. Usen
...Objection cannot be made to an amended bill in equity by a demurrer to the bill in its original form. As was said in Witham v. Wing et al., 108 Me. 364, 81 A. 100, 103: "If they had wished to object to the amended bill by demurrer, they should have filed a new demurrer to the amended Defend......
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Lyon v. Dunn
...the first materials or services are furnished. See Pineland Lumber Co. v. Robinson, Me., 382 A.2d 33, 36 (1978); Withan v. Wing, 108 Me. 364, 373, 81 A. 100, 104 (1911). At that point, however, the lien is merely inchoate in nature, and will not ripen absent further action by the materialma......
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Maxim v. Thibault
...contract alleged. The statement in the affidavit is not material; it is not required by the statute. R. S. c. 96, § 31; Witham v. Wing, 108 Me. 364, 370, 81 A. 100. But the allegation in the bill is a material, substantial allegation which should be proved, and failure to prove it may be gr......