French v. Hussey , 159 Mass. 206 ( 1893 )

Field, C. J.

Under Gen. Sts. c. 150, §§ 1 and 2, if labor was performed or furnished, and materials were furnished, to a person not the owner of the property, under an entire contract for an entire price, and no notice was given to the owner before furnishing the materials of an intention to claim a lien, there was no lien for either labor or materials. Morrison v. Minot, 5 Allen, 403. The St. 1872, c. 318, was passed for the purpose of giving a lien for the labor performed or furnished in the case above stated, provided it could be distinctly shown what such labor was worth, the lien in no event to exceed the price agreed upon for the entire contract. This is now Pub. Sts. c. 191, § 2. But no statute has been passed permitting a lien for the materials in the case above stated, unless notice of an intention to claim a lien is given to the owner of the property before the materials are furnished. The statute must mean that the notice must be given before any of the materials are furnished under the contract. If some are furnished before, and some after, the statute provides for no apportionment of the value, and no mode for ascertaining the price to be charged for the materials furnished after the notice. The first ruling was therefore correct.

In the present case the statement filed in the registry of deeds does not state any entire contract price, but it is a statement of a certain number of days’ labor and of certain materials furnished, with the prices for each as if there had been no entire contract price. It apparently includes everything that was furnished, both under the first and second contracts, and the whole amount claimed is $345.56, while the price agreed upon in the first contract is $285, and in the second $8.10. When labor and materials are furnished for an entire contract price, and the contract is fully performed, and a lien is claimed for both, the statement, if true, must necessarily contain the contract price; if a lien is claimed for the labor only, the statute expressly requires that the contract price should be stated. Pub. Sts. c. 191, § 6. The reason is, that for labor furnished under a contract for an entire price the amount of the lien can never exceed the contract price. As the petitioner had no lien for materials furnished under the first contract, he should have filed a statement for labor only, and in it should have stated the contract price, etc. We think that this provision of the statute cannot be evaded by ignoring the contract altogether, and filing a statement as if the labor and materials had not been furnished under a contract for an entire price. Such a statement is insufficient as the basis of a lien when the labor is furnished under a contract for labor and materials at an entire price. The St. 1892, c. 191, was passed long after the statement in this case was filed, and after the petition was brought, and is therefore inapplicable. Pierce v. Cabot, ante, 202. Moore v. Erickson, 158 Mass. 71. Ellinwood v. Worcester, 154 Mass. 590. Hurley v. Lally, 151 Mass. 129. Grogin v. Walsh, 124 Mass. 516.

Whether a lien should be established for $8.10 for labor and materials furnished under the second entire contract may depend upon facts which are not stated in the report, and the form of the notice given to the respondent might be important. The case was reported at the request of the petitioner, and although the respondent consented, yet we infer that he did not request a report or except to the ruling of the court. From the conclusion of the report, we infer that it was not the intention of the justice that the correctness of his finding for the petitioner for $8.10 should be reviewed by this court. A decree is to be entered in accordance with the finding of the Superior Court.

So ordered.