The Martin Tire Rubber Co. v. the Kelly Tire Rubber , 99 Conn. 396 ( 1923 )

Defendant claims that the facts stated in paragraphs eight and eleven of the finding should be corrected because they are inconsistent and found without evidence. The petitioner, on the other hand, says that these are findings of fact made upon undisputed evidence. The statement in paragraph eight, that the petitioner continued to furnish services in the completion of the contract for the construction of the building, we regard as a mixed conclusion of law and fact; that the conclusion of fact must have been found from the other facts in the finding, and hence the conclusion is reviewable. The statement in paragraph eleven, that the services of the superintendent were rendered in completion of the contract for the construction of the building, is the same sort of conclusion. Both of these conclusions depend upon the conclusion to be drawn from the subordinate facts together with a construction of the building contract, and the application of the subordinate facts to the contract so construed.

The defendant rests its appeal upon what it holds to be two principles of our law of mechanics liens which make the lien of the petitioner invalid. First, that since the building had been substantially completed on March 9th, the lien began to run from that date, and hence the sixty-day period in which the lien could be filed had expired. Second, that the only services detailed in the finding rendered after March 9th were for the civil engineer, who was the superintendent on the job, and for a carpenter for one day, and did not entitle the petitioner to a mechanic's lien. The defendant misconceives the proper application of the rule of substantial completion in determining the time from which the sixty-day period should be computed. The period for filing the lien under our statute (§§ 5217, 5218) "for material furnished or services rendered in the construction, raising, removal or repairs of any building," will be computed, ordinarily, from the date of the last item of material furnished or services rendered. The rule is one to be applied fairly to both the lienor and the owner. If, after the work is substantially done, the claimant for the material furnished or services rendered shall unreasonably delay the completion of the work, the date of beginning of the sixty-day period will be taken as the date when the work was substantially done. No trivial or inconsequential service or work done after the substantial completion of the building will extend the time for claiming the lien, or revive an expired lien when an unreasonable period has elapsed since the substantial completion. If the article furnished or the service rendered be trivial, but be required by the terms of the contract of building, this fact will be taken into consideration in determining whether the elapsed period be unreasonable or not. And "where a service is performed or material furnished at the request of the owner, it will extend the time for claiming a lien or will revive an expired lien, as to a contract . . . substantially performed." 35 L.R.A. (N.S.) 904 note. Thus in Nichols v. Culver,51 Conn. 177, it is held that trivial work done or material furnished will be sufficient to extend the time for filing the lien if done at the request of the owner, and not for the mere purpose of saving his lien.

We have held in Flint v. Raymond, 41 Conn. 510, and Sanford v. Frost, 41 Conn. 617, that there must be no unreasonable delay in completing work which has been substantially done, and that "work done after such delay will not be considered in fixing the sixty days allowed for recording the lien." In the first of these cases the delay was nine months and the work done covered three hours' work, and in the second the delay was six months, and the work done of trifling value. In Cole v. Uhle, 46 Conn. 296, the work was substantially completed November 15th, except as to two items, one of which was done on December 1st and the other February 27th, and in distinguishing this case from Flint v. Raymond andSanford v. Frost, we said: "We think the case at bar is distinguishable from both of the cases above mentioned, not only in that the amount of work done after the time for fulfilling the contract was greater, while the delay was comparatively short, but more especially in the fact that the reason for the delay must be regarded as sufficient against the original party to the contract, at whose special instance and request the work was so postponed." In Peck v. Brush, 90 Conn. 651,656, 98 A. 561, we say: "We have held that the time for filing the certificate of lien begins to run from the substantial completion of the furnishing materials or services, and is not extended by trivial work deferred, or by work or materials furnished for the same building under a new contract with a different contractor and completed after such substantial completion." See, also, Nichols v. Culver, 51 Conn. 177,183; note, 35 L.R.A. (N.S.) 904; Phillips on Mechanics' Liens, § 229; Boisot on Mechanics' Liens, § 481; 27 Cyc. 144; 18 Rawle C. L. § 62, p. 931.

To determine whether the period of the running of the mechanic's lien should begin with the date of the substantial completion of the contract, we must first ascertain the date of substantial completion. No express finding has been made in the instant case on this point. In its absence, defendant wishes us to draw the conclusion that there had been a substantial completion on March 9th, 1921. Assuming that this was a conclusion which we were entitled to draw upon the finding before us, we could not conclude that there had been an unreasonable delay in finishing the contract, or that the work done and services rendered after March 9th were trivial.

The amount expended by the petitioner under his building contract after March 7th, was $1,156.70; of this $151.75 was for a payroll on March 9th, for engineer, carpenter, foreman, tool-boy, bricklayer and two laborers. On March 25th, a carpenter provided his services. The balance of this amount was for the salary of a civil engineer, the petitioner's superintendent of construction, who was employed up to April 6th, 1921, "in cleaning up and making alterations and getting petitioner's equipment in condition for removal and removing it from the job, as required by the contract." If the items of this amount or a substantial part were items for which a mechanic's lien would lie, they cannot be called trivial. The delay in furnishing these items, about a month, cannot be considered unreasonable, especially in view of the fact that they were furnished under the contract for the building and that there was a continuity in the rendition of services, and the work cannot be held to have ceased on any particular day prior to April 6th. The time limited by statute for filing the certificate was from the cessation of furnishing materials and rendering services in construction, and in this case the work may fairly be said to have been continuous. Where the work is continuous under the contract, the day when the work ceased must ordinarily be taken as the date of cessation of furnishing materials and rendering services, since there has been no unreasonable delay and no cessation of work. The work may be delayed after the work has been substantially completed, but that does not compel the contractor to file his lien within sixty days after the substantial completion. The construction best adapted for practical needs is that which we have already adopted: that the lien must be filed within sixty days from the cessation of work, but if there has been an unreasonable delay by the contractor in completing his work he cannot have the period for filing the lien extended beyond the date of substantial completion by some trivial material or services furnished, but that the owner may by his conduct or agreement extend the period for filing the lien which had determined by law.

So far as the construction of §§ 5217, 5218 is concerned, it makes no difference whether we apply the rule of strict or of liberal construction. The defendant is, however, wrong in invoking the rule of strict construction in reliance upon Chapin v. Persse BrooksPaper Works, 30 Conn. 461, 470. That rule of construction as applied to our mechanic's lien law no longer prevails. "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." Tramonte v. Wilens, 89 Conn. 520, 523,94 A. 978.

We now reach the second of the defendant's claims. Was the service rendered after March 9th, such as prevented the running of the sixty-day period? If the service were confined to the carpenter's day of work on March 25th, we should incline to the view that upon a contract of this magnitude this service was too trivial to furnish a basis for the extension of the running of the sixty-day period. The remaining service, in value nearly $1,100, was rendered by the superintendent of construction in work done by him under his employment and under the contract for the building. We should not upon this record be able to hold that the preparation for removal and the removal of the petitioner's equipment from this building was the rendition of such service as would warrant the filing of a mechanic's lien or fix the date of the running of the lien. But the alteration of the building, and the cleaning up of the building, is work which is a necessary part of the construction of the building, and work and service for the exclusive benefit of the owner. The superintendent of construction is upon the same basis as the mechanic under our mechanic's lien law. The contract under which the petitioner worked was a single, indivisible one. The date of its completion fixed the time for filing the lien. There was no cessation of work until after the superintendent fulfilled his service under the contract. The sufficiency of the lien is not attacked. It was filed on May 23d 1921, within sixty days of April 6th, 1921, when the petitioner ceased to furnish material or render service under its contract with defendant, and therefore the lien was valid.

There is no error.

In this opinion the other judges concurred.