Whitney v. Joslin

Mobtost, J.

The petitioners claim a lien under their contract with the respondent, dated July 6,1870. By this contract, the respondent agrees to pay them $281 for work and materials already' furnished for the barn, upon the consideration that they shall pay all outstanding bills for such work and materials; and also to pay them for all materials used in the completion of the barn. We are of opinion that they cannot maintain a lien for the $281. If they ever had a lien for the materials furnished to Bourassa, they have waived it by the new contract. The enforcement of such lien is inconsistent with the contract. They have accepted the personal liability of the respondent for a fixed sum, as a substitute for her liability upon the debts for materials and labor previously furnished, and can claim a lien only under the new contract. But by this contract the respondent agrees to pa.v an entire sum for labor and materials previously furnished. It is clear that the petitioners have not, and never had, any lien fothe labor performed by Bourassa. Parker v. Bell, 7 Gray, 429. As the contract was entire for labor and materials, there being no lien for the labor, there is none for the whole or any part of the contract price. Graves v. Bemis, 8 Allen, 573. Mulrey v. Barrow, 11 Allen, 152. This is decisive of the petitioners’ claim upon this part of their case, and it is not necessary to consider the other objections to it.

But their claim for $94 stands upon different grounds. This is for materials furnished by them, under the contract, in completing the barn; and they are entitled to enforce their lien therefor, unless they have lost it by failing to comply with the requirements of the statute. It is objected that the certificate filed in the town clerk’s office under the Gen. Sts. c. 150, § 5, is fatally defective. The certificate states that the amount due the petitioners for labor and materials, for which they claim a lien, is $375. This is inaccurate and defective. But the statute provides that no inaccuracy in such statement, in stating the amount due for labor or materials, shall invalidate the proceedings, unless it appears that the person filing the certificate has wilfully and knowingly claimed more than is his due. Gen. Sts. o, 150, § 6. There is nothing in this case to show that the petitioners wilfully and knowingly claimed more than is their due. The amount claimed is correct; their error consisted .in claiming a lien for the whole, when they are entitled to a lien for a part only. Such a mistake as to their legal rights is not unnatural or unreasonable, and, if honestly made, will not defeat their lien. Hubbard v. Brown, 8 Allen, 590.

We are not able to see any force in the objection that the husband of the respondent should have been made a party to the suit, her contract having been in reference to her separate property. Gen. Sts. c, 108, § 3.

The result is, that the petitioners are entitled to a lien for the debt due for the materials furnished after the execution of the said contract with the respondent.

Judgment for the petitioners accordingly.