Woodruff v. Hovey , 91 Me. 116 ( 1897 )

Haskell, J.

Bill in equity to enforce a mechanic’s lien upon a building and the land on which it stands. Assuming that all other facts necessary to support the bill have been proved, which it is unnecessary to here decide and which we do not decide, the plaintiff has failed to prove one fact necessary to sustain the action, and that is that his lien was seasonably enforced.

Plaintiff contracted with defendant railroad company, in writing, on the 15th of April, 1896, to construct a round house for the company according “ to plans furnished by the chief engineer of the company and to the satisfaction of said engineer,” for the sum of $1100. The specifications are given, but the plans are not sent up with the case. Both are said to be silent upon the point now in issue, and therefore of,no consequence. Plaintiff began work May 13th, and on the 10th or 11th of June the plaintiff says the engineer came while he was on. the roof putting on the last wire to hold the smoke stack. “ I says, ‘ Have you looked the building over? Are you satisfied with it as far as it has gone? and he says: I am going up the line and I might as well accept the job now as any time. I have got all the confidence in the world in you that- you will go ahead and finish it up according to agreement. He says : Now if you will go ahead and finish it up and do what

you have got to do here as well as you have done what you have done, I will accept the job,’ and he wanted to know how long it would take me to finish up, and I told him two or three days perhaps, I can’t tell exactly.” Conversation then followed about the doors, and plaintiff was told that they were a part of his job, and that as they were a little short he would have to put on a wider flap at the bottom that was to drop down over the track. Plaintiff says, “ Look here, now, I can go ahead probably and finish this all up except round this track, and when is this track going to be put in here ? He says: Lancaster (the president of the company) is anxious to have this building and the track will be right in here.”

Plaintiff worked his couple of days, hung the doors, put on the flaps and quit on the 13th. The only remaining work was to put in a few additional screws, some hasps to hold up the flaps and cut notches in them for the track. On the 22d of June plaintiff saw Lancaster and turned over the keys to him. By the terms of the contract the plaintiff agreed “to take all risk of damage by fire or any cause whatever until said house is completed and accepted by said engineer.” Now the job was accepted on the 10th or 11th, with plaintiff’s assurance that he could complete it in two or three days. In that time he did substantially complete it, and on the 22d delivered the building to the railroad company. That was when the contract work ended and the contract was completed. The contract price then became due and payable. The parties must have so understood the transaction. If a few trifles remained to be done, like sawing the notches in the flaps and turning a few additional screws into the hinges and putting on a couple of hasps, that could all have been done inside an hour, either the defendant waived it as contract work, or relied upon its being done in the future as present compliance with contract work. It is incredible that either party then supposed the contract price would not become payable until such work had been done, or that any lien for contract work could not be enforced before.

After this, it became known that the railroad company was in financial trouble, and after the lapse of more than forty days from the acceptance of the contract work when the lien had already lapsed for non-enforcement, the plaintiff, on the 7th of August, went down to tbe round bouse ex mero motu, sawed the notches in the flaps, turned in a screw or two more in the hinges and put on some hasps to hold up the flaps and then, on September 8th, made oath to his lien claim, filed the same with the town clerk on the 9th, and on the same day filed this bill to enforce the lien.

Nothing can be plainer than that the trifling work plaintiff performed on the seventh was for the purpose of reviving a lien that he had already lost.

A lien once lost cannot be revived by additional work. Cole v. Clark, 85 Maine, 336; Darrington v. Moore, 88 Maine, 569.

Bill dismissed.