Davis v. Humphrey , 112 Mass. 309 ( 1873 )

Endicott, J.

The petitioner in September, 1871, made a contract with Humphrey to do the wood work, and furnish the necessary material therefor, upon a brick house, in process of erection on land the legal title to which was in Goodwin. Work was commenced under this contract some time before October 30. Humphrey at that time held a bond for a deed of the land from Goodwin, and under our decisions no lien would attach to the land under such contract, unless the building was erected or the work done with the consent of Goodwin. Hayes v. Fessenden, 106 Mass. 228.

This question was submitted to the jury, and they found that when Goodwin gave the bond for a deed he knew Humphrey intended to build, and that before November 18 he consented Davis should so build ; and also that on or before November 10 Davis notified Goodwin that he intended to claim a lien on the land for his work and materials.

The only question raised by the respondents on this point is, that there was no sufficient evidence to go to the jury, that the work and materials were furnished with the consent of Goodwin. We think there was evidence on this point proper for the jury. It appears in the report that the intent of Goodwin and Humphrey, when Goodwin gave the bond, was that Humphrey should have a lot and build a house on it; that they had frequent conversations about building before and after the bond was given; that Goodwin knew Humphrey’s arrangements for procuring money for that purpose, and also knew when the cellar was dug; that he met Davis at the house when he first began to work, and talked with his foreman about the lot; and that during the first week in November, Davis gave him oral notice that he intended to claim a lien, and whether Goodwin then declared he would be in.no way responsible, was a question in dispute. All three parties were witnesses. These facts had some tendency to show consent on the part of Goodwin, and their weight was for the jury to determine.

The case is to be- distinguished from the decisions of Peabody v. Easten Society, 5 Allen, 540, and Hayes v. Fessenden, supra. Both these cases arose on agreed statements of facts. It was held in the first there was no evidence the owner knew of the erection of the building on his land, much less that he consented; in the second, that mere knowledge of the erection was not sufficient, there being no evidence of consent. The case resembles more closely Hilton v. Merrill, 106 Mass. 528, where it was held .to be within the contemplation of the parties, and the principal purpose of the agreement to convey, that a house should be built upon the land, and the consent to build was to be implied from the contract. And here the consent may be implied from the knowledge of the party taken in connection with his acts, purposes and conduct as they appeared in the evidence, upon which the instructions were given. And this was in substance the ruling of the presiding judge; and he was not bound to instruct the jury that upon particular facts, separated from the others, they would not be justified in finding consent; but properly submitted the question upon all the evidence.

The ruling of the presiding judge, ordering a verdict for $440 was too favorable to the defendants. It proceeded upon the ground that no lien attached for materials furnished before November 18. The jury found that Davis notified Goodwin, on or before November 10, that he intended to claim a lien, and that Goodwin consented before November 18 that he should build on the land. Davis was then building under an entire contract with Humphrey to furnish labor and materials in the erection of the house. There is no question that Goodwin knew that Davis was building for Humphrey under áome agreement with him; whether he knew the precise terms of the agreement is not important. Under these circumstances his consent that Davis should build must be taken to be a consent that he should build for Humphrey as agreed upon ; or in other words, to do all which his contract with Humphrey required. Such consent covers the work performed under such contract, and must be held to include that which had been done when the consent was given, as well as that which was afterwards done in completion of the contract. The question raised as to the application of payments therefore becomes immaterial.

Whether the agreement to take a mortgage for the balance due, when the house was finished, was inconsistent with the existence of a lien, was not raised or ruled upon in the court below.

Judgment on the verdict.