York v. Mathis

• Decision Date: 16 September 1907
• Citation: 103 Me. 67,68 A. 746
• Parties: YORK et al. v. MATHIS et al.
• Court: Maine Supreme Court

68 A. 746

103 Me. 67

YORK et al.

v. MATHIS et al.

Supreme Judicial Court of Maine.

Sept. 16, 1907.

Appeal from Supreme Judicial Court, Penobscot County, in Equity.

Bill in equity by Samuel N. York and others against L. D. Mathis and the Eastern Musical Association and another. Decree for plaintiffs, and the Eastern Musical Association appeals. Appeal dismissed, and decree below affirmed.

Bill in equity brought by the plaintiffs, "Samuel N. York, of Brewer, in the county of Penobscot, state of Maine, and Charles P. Poster, of Bangor, in said county, copartners in business under the name of Poster & York," against "L. D. Mathis, of Portland, in the county of Cumberland, in said state, and the Eastern Musical Association, a corporation duly created by law, and having its place of business at said Bangor, and the Eastern Trust Banking Company, a corporation duly created by law, and having its place of business at said Bangor," to enforce the plaintiffs' lien claim upon the Auditorium Building, so called, in said Bangor, and the leasehold interest in the land upon which it stands, owned by the said Eastern Maine Musical Association, for materials furnished and labor performed by the plaintiffs in relaying a part of the floor in said Auditorium Building during the occupancy of the defendant Mathis who held under a written lease from the said musical association for the term of 10 months beginning May 20, 1905, for a rental of $1,500. This lease expressly provided that the premises were "to be used as a skating rink."

The Eastern Maine Musical Association, one of the defendants, duly filed its answer to the bill. The other defendants Mathis and the Eastern Trust & Banking Company did not answer, and the bill was taken pro confesso as to Mathis and by consent was dismissed as to the Eastern Trust & Banking Company.

The cause came on for hearing at the January term, 1907, of the Supreme Judicial Court, Penobscot county. By the request of the plaintiffs, set forth in the bill, a Jury trial was had as provided by Rev. St. c. 93, § 36. Before proceeding with the trial, the following admissions were made:

"It is admitted that the amount due at the time the bill was filed was $500."

"It is also admitted that the necessary preliminary steps to enforce a lien were taken."

Counsel for the Eastern Maine Musical Association stated as follows: "The only point we make is that the property is not subjected to the lien, never was any lien, but we do not propose to raise any question as to the amount due or as to the preliminary steps taken to enforce the lien, and that they were seasonably filed and sufficient in form. The only question at issue is whether the work was done with consent."

The jury returned a verdict that the plaintiffs had a lien upon the building and leasehold interest in land of the Eastern Maine Musical Association described in the bill, "as alleged by them."

The presiding justice then made and filed the following decree:

"This cause came on to be heard at the January term, 1907, upon bill, answer, admissions of record and proof. The bill was taken pro confesso as to L. D. Mathis, and it was duly dismissed as to the Eastern Trust & Banking Company. In the bill, the plaintiffs claimed a lien upon the property described in the bill for the sum of $500 and interest thereon from the date of the bill, namely, December 7, 1905, and costs. Upon request of the plaintiffs, as set forth in said bill, the court determined the amount for which the plaintiffs have a lien upon said property described in the bill by a jury trial, as provided by Revised Statutes, by submitting to the jury the question, the form of which was duly assented to by counsel for plaintiffs and by counsel for the Eastern Maine Musical Association, as follows:

"'Have the plaintiffs a lien upon the building and leasehold interest in land of the Eastern Maine Musical Association described in the bill, as alleged by them?'

"To which said question the jury answered, 'Yes.'

"Therefore, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz.: That the bill in this case be sustained, with costs taxed at $70.17, and that the plaintiffs recover of the said L. D. Mathis the sum of $500, together with interest from the date of filing said bill, to wit, $32.50, in all amounting to $532.50, together with costs amounting to $70.17, and in pursuance of said finding of the jury the court determines that the plaintiffs have a lien upon the property described in said bill, to wit, the building known as the 'Auditorium Building,' and all the leasehold interest that said Eastern Maine Musical Association has in the land upon which the same stands, as said building and said leasehold interest in the land are particularly described in said bill for said amount of $532.50, and costs amounting to $70.17, in all amounting to the sum of $602.67; and the court also decrees that all said property, to wit, said Auditorium Building, described in said bill, and all the leasehold interest that said Eastern Maine Musical Association has in the land upon which said building stands, as said building and said leasehold interest and said land are particularly described in said bill, shall be sold by public auction to the highest bidder therefor at the law office of Charles A. Bailey, Esq., being office No. 15 in the Columbia Building, on Columbia street, in said Bangor, in said county of Penobscot, on Thursday, the 21st day of March, A. D. 1907, at 10 o'clock in the forenoon, and said Charles A. Bailey, Esq., of said Bangor, is hereby appointed an officer of this court to make said sale, he, the said Charles A. Bailey, first giving notice of the time, place, and manner of said sale by publishing notice thereof in the Bangor Daily Commercial for three weeks successively previous to said sale, the first publication to be at least 30 days before said sale, the said plaintiffs to have equal privileges with other persons to be bidders at said sale, and to become purchasers thereat. The proceeds of said sale after payment of all expenses thereof, including said Charles A. Bailey's fees and commissions, shall be applied to the satisfaction of the amount of said plaintiff's claim and costs as above particularly specified; and the balance, if any remaining, shall be returned into court for the benefit of such person or persons, party, or corporation as the court shall determine are legally or equitably entitled thereto, and the deed of said Charles A. Bailey in his said capacity as said officer of the court, conveying said building and said leasehold interest in said land, to the purchaser at said auction sale, to be recorded in the registry of deeds in said Penobscot county, within three months after the sale, shall convey all the title of said Eastern Maine Musical Association in said Auditorium Building and in said leasehold interest in said land; the said Eastern Maine Musical Association, or any other person or persons, party, or corporation, who may be the owners of said property, namely, said building and said leasehold interest in said land, to have the right to redeem from said auction sale to be made by said Charles A. Bailey at any time within 60 days from the day of sale, and a commission shall duly issue out of this court to said Charles A. Bailey giving him authority in the premises as aforedescribed, and, if this decree and determination shall be appealed from, then upon final decree, if a sale shall be ordered to be made, the court will again fix the time, place, and manner of sale, or make any other modifications in this decree that law and equity shall require."

This decree was drawn under the provisions of Rev. St. c. 03, § 37. From this decree the Eastern Maine Musical Association duly appealed to the law court, as provided by Rev. St. c. 79, § 22.

All the material facts appear in the opinion.

Argued before EMERY, C. J., and WHITE-HOUSE, PEABODY, SPEAR, and CORNISH, JJ.

F. A. Floyd and Matthew Laughlin, for plaintiffs. Fred V. Matthews, for defendant L. D. Mathis. E. C. Ryder, for defendant Eastern Maine Musical Ass'n. C. A. Bailey, for defendant Eastern Trust & Banking Co.

WHITEHOUSE, J. This is a bill in equity to enforce the plaintiffs' lien claim upon the Auditorium Building in Bangor and the leasehold interest in the land upon which it stands, owned by the Eastern Maine Musical Association, for materials furnished and labor performed by the plaintiffs in relaying a part of the floor during the occupancy of the defendant Mathis, who held under a written lease from the musical association for the term of 10 months, beginning May 20, 1905, for a rental of $1,500. This lease expressly provided that the premises were "to be used as a skating rink."

The following provisions are found in chapter 93 of the Revised Statutes, relating to mechanics' liens. Section 29: "Whoever performs labor or furnishes labor or materials in erecting, altering, moving or repairing a house, building or appurtenances, or in constructing, altering, or repairing a wharf, or pier, or any building thereon, by virtue of a contract with or by consent of the owner, has a lien thereon, and, on the land on which it stands and on any interest such owner has in the same, to secure payment thereof, with costs." Section 30: "If the labor or materials were not furnished by a contract with the owner of the property affected, the owner may prevent such lien for labor or materials not then performed or furnished by giving written notice to the person performing or furnishing the same, that he will not be responsible therefor." Section 31, as amended by Pub. Laws 1905, p. 116, c. 110: "The lien mentioned in the preceding section shall be dissolved unless the claimant within sixty days after he ceases to labor or furnish materials as aforesaid, files in the office of the clerk of the town in which such building, wharf or pier is situated, a true statement of the amount...