Smith v. Norris , 120 Mass. 58 ( 1876 )

Devens, J.

The contract between Norris and Eadie & Brown was similar to that in Hilton v. Merrill, 106 Mass. 528. It was one of the purposes of their agreement that Eadie & Brown should proceed to erect a block of houses upon the land which, on certain terms, Norris was to convey to them, and for this purpose Norris was to advance a specified amount of money. By implication he authorized Eadie & Brown to employ, either directly or through sub-contractors, the workmen necessary foi this object, and the labor thus employed was performed by i» tendment of the statute, with the consent of Norris.

The petitioners, in making their contract and entering upon its performance, had a right to rely not only on the promise of Eadie & Brown, but also on their lien upon the property as security for the work which they might do under it. When, therefore, Eadie & Brown became bankrupt, even if they were no longer personally liable for what the petitioners might after-wards do under their contract, the petitioners could still go on, relying upon their lien on the property, and finish the work for which , they had contracted, if in so doing they acted in good faith and for the purpose of completing their contract. The labor thus done would be under the authority which it must be inferred Norris had given Eadie & Brown to employ workmen, and would be performed on his estate with his consent.

Nor are the petitioners to lose their lien because, acting in good faith, they have failed fully to complete all the labor they agreed to perform ; that which they have done has been under the contract, to which the respondent consented, and it is that consent which subjects his estate to the lien. If, by the failure of the workmen in such a case fully to perform, any injury should have been occasioned, or their labor should have been less valuable, there might be a deduction from the contract price by way of recoupment. No such question has, however, been here presented. It has been found that what the petitioners have done, since the bankruptcy of Eadie & Brown, they did in good faith, expecting to be able to finish their contract, and that they have failed because the necessary materials were not furnished. They are entitled, therefore, to judgment for the amount which the auditor has decided to be due, having filed the necessary certificate within thirty days after the completion of the labor which they were able to perform.

Assuming, but not deciding, that the St. of 1872, c. 318, was intended to apply to an entire contract like that in the case at bar, which was for work and labor only, the certificate filed was still sufficient to meet all the requisitions of § 2 of that statute. In addition to the statements required by the Gen. Sts, c. 150, § 5, it set forth the entire price for the entire contract, the number of days’ labor performed, and the value of the same. Even if the value as stated was more than that which has been found to be due, the St. of 1872 is but an extension of the Gen. Sts. c. 150 and, as it does not appear “ that the person filing the certificate has wilfully and knowingly claimed more than is his due,” the inaccuracy in the statement does not “ invalidate the proceedings.” Gen. Sts. c. 150, § 6. This certificate having been filed within thirty days after the completion ;f the labor which the petitioners were able to perform, they are therefore entitled to judgment for the amount which the auditor has found to be due.

Judgment affirmed.