Turner v. Wentworth , 119 Mass. 459 ( 1876 )

Morton, J.

In cases which are tried by the court without a jury, each party has the right to except to the decisions and rulings of the court upon matters of law, in the same manner and with the same effect as upon trial by jury. But the findings of the court upon matters of fact are conclusive to the same extent as the verdict of a jury, and this court has not the power to revise such findings upon a bill of exceptions. In the case at bar, the exceptions alleged by the respondents are rather of the nature of objections to the findings of the presiding judge as to matters of fact, than of exceptions to his decisions and rulings in matters of law.

1. The question whether the certificate filed in the office of the clerk of the city was seasonably filed is a question of fact. The statute provides that the lien shall be dissolved, unless the person claiming it files the certificate “ within thirty days after he ceases to labor on or furnish labor or materials for ” the building upon which he claims a lien. The evidence showed that the petitioners did some labor, and furnished some materials used, in the erection of the building, within the thirty days. If this was done in good faith, for the purpose of completing their contract, ■ and not colorably in order to revive their lien, the thirty days would begin to run from the time they thus performed labor and furnished materials. This presented purely a question of fact, upon which the finding of the presiding judge is conclusive.

2. The petitioners claim a lien for three furnaces and three ranges set by them, one in each house, in a block of three houses. If the labor and materials for which they claim a lien were performed and furnished under an entire contract, a lien attached in their favor to the entire estate. Wall v. Robinson, 115 Mass. 429. Worthley v. Emerson, 116 Mass. 374. The finding of the judge who heard the case, “ that the contract was entire and indivisible to do work and furnish materials upon an entire estate,” cannot be revised by this court.

3. The only other question argued to us is as to the correctness of the finding of the presiding judge that the petitioners were entitled to a lien for the furnaces and ranges furnished by them. The question before him upon this subject was a mixed question of law and fact. If the transaction between the petitioners and the owner of the building was merely a sale by the former of the furnaces and ranges as personal property, they would have no lien upon the building in which they were put by the purchaser. But if by the contract of the parties the furnaces and ranges were to be furnished as parts of the several houses in which they were put; if it was the intention and understanding that they should be, and they were in fact, applied so as to constitute parts of the buildings, the petitioners would have a lien for them. They would be, within the statute, materials furnished and used in the erection of the buildings. There was competent evidence which would justify the finding that they were furnished under the contract, as parts of the buildings, and that they were annexed to and became parts of the realty, and there is nothing in the bill of exceptions to show that the presiding judge did not correctly apply the rules of law to the facts proved. His finding, therefore, upon this question is conclusive.

4. The exception to the ruling that the hearing might proceed upon a certified copy of the petition, the original having been lost, was not pressed at the argument, and we consider it as waived. Exceptions overruled.