Kennebec Framing Co. v. Pickering , 142 Mass. 80 ( 1886 )

Holmes, J.

When, as here, the price is fixed by the thousand feet, we will assume that a lien can be maintained for materials furnished and actually used, although furnished under an entire contract which calls for a larger quantity, part of which is not actually used. Felton v. Minot, 7 Allen, 412. But in Gale v. Blaikie, 129 Mass. 206, the court say: “ It is clear that the statement of account is intended to embrace only those charges which the lien secures, and that it is to be filed within thirty days after the last of the items charged and secured is furnished. The only ‘ materials ’ which are the subject matter of provisions of the statute are materials furnished and actually used.” In the opinion of a majority of the court, we cannot fairly distinguish this case from that, consistently with its reasoning, on the ground that the present contract was entire. We cannot reconcile it with that reasoning to say that, when the contract is entire, the materials referred to by the Pub. Sts. c. 191, § 6, are the last materials which are furnished under the contract; and which, although not actually used, must be furnished before a debt can arise in respect of the portion actually used. The language cited imports that the statement must be filed within thirty days of the furnishing of that part of the materials which is actually used, and in respect of which a lien can be claimed. It would be consistent with Gale v. BlaiMe, perhaps, either to presume conclusively that the last car-load of lumber was used, tir to say that that previously delivered was not furnished in the sense of the statute until a debt had arisen in respect of it. But neither of these suggestions commends itself to us, and we must adhere to what has been decided. The hardship seems greater, technically, when the contract is entire, and the petitioner has precluded himself from filing his certificate before complete performance, if that is the. effect of such a contract, which we do not intimate. But we doubt if there is much practical difference except when the purchaser refrains from using part of the materials for the purpose of defeating the lien, which is not suggested to have been the fact in the case at bar.

Exceptions overruled.