Foss v. Desjardins , 98 Me. 539 ( 1904 )

Peabody, J.

This is an action to enforce the lien of the plaintiffs upon land and buildings owned by Herbert W. Robinson, in the City of Lewiston, for materials furnished in the erection of the buildings under a contract with the defendants.

The account annexed to the writ between the plaintiffs and the defendant contractors was referred to an auditor, who reported that the amount due from the defendants to the plaintiffs was $297.59; that the last item for the buildings described in the writ, one lot of blinds and trimmings, was delivered November 20, 1902; that the item next preceding was a shelf delivered November 11, 1902, found to be a gift from the defendants without any knowledge on the part of the plaintiffs that it was to be a gift; and that the item next preceding this was delivered November 10, 1902.

The presiding justice rendered judgment for the plaintiffs for the sum of $296.07 and interest from the date of the writ, which was February 9, 1903, and a lien judgment against the premises for a like amount.

To the rulings of the court, the owner of the land and buildings filed exceptions.

The item of November 11, 1902, could not create a lien, as it was not a part of the materials furnished for the buildings, and it was properly disallowed by the court. All the other items found due by the auditor were allowed and entered into the lien judgment.

The statutory notice of the plaintiffs’ claim was filed in the city clerk’s office December 20, 1902.

The contract between the plaintiffs and the defendants was not an entire contract but embraced a series of items, as appears by the auditor’s report. These items were correlated only as being furnished for the same buildings and in the aggregate forming an inchoate lien claim in favor of the sub-contractors, which could be preserved only by observing the requirements of the statute which create the lien.

It was indispensable that the notice of the claim should be filed in the city clerk’s office within forty days after the claimants ceased to furnish materials, and that the suit should be commenced within ninety days after the last materials were furnished. Sections 32 and 34, chap. 91, R. S. 1883.

The auditor’s report finds that the last item, except the one disallowed by the court delivered subsequently to November 10, 1902, was furnished November 20, 1902. This item, being beyond the dates which the plaintiffs’ notice includes, “from July 1, 1902, to November 13, 1902,” cannot be proved as part of the plaintiffs’ lien claim. Consequently the suit in reference to the date of the last item provable was fatally late, and the lienors’ rights were thereby lost.

Section 33, chap. 91, R. S. 1883, does not apply, and the reasoning of the court in Durling v. Gould, 83 Maine, 134, and Wescott v. Bunker, 83 Maine, 499, does not sustain the contention of the plaintiffs. The proceedings were invalidated not by technical inaccuracies in the notice, but by delay in commencing the suit which dissolved the lien.

Exceptions sustained.