141 Mass. 280 | Mass. | 1886
The refusal to give the second ruling asked was right.
Interest from the date of the petition was properly included. Johnson v. Boudry, 116 Mass. 196.
The petitioner made an oral contract with one Sheldon to do the plumbing, furnishing the materials and labor, in the construction of the respondent’s house, for an entire price of $300, to be paid on the completion of the contract by the petitioner. He gave no notice of his intention to claim a lien for materials, and he can distinctly show what the labor was worth. He had,
The payment was made before anything was due under the contract, and was expressly made to enable the petitioner to pay for materials which he had provided. Doubtless the parties could have agreed that the payment then made should be applied in payment for materials, so that it should not go to reduce the amount of a lien which the petitioner might have for labor. But no such agreement was expressed, and none can be implied from the facts stated.
Assuming that the payment is to be taken as a partial payment under the contract, we think it did not affect the petitioner’s right to a lien for labor. The statute provides that, when labor and materials are furnished under an entire contract for an entire price, “ a lien for the labor alone may be enforced, if it can be distinctly shown what such labor was worth, but in no case shall such lien be enforced for a sum greater than the price agreed upon for the entire contract.” It is not contended that, under this provision, no lien for labor can be enforced after there has been a partial payment under the contract. In such a case, if the worth of the labor exceeds the balance of the contract price after deducting the partial payment, it is plain that the lien cannot be enforced for a sum greater than that balance; that is, the meaning of the statute is that the lien shall not be so enforced that the whole sum paid on the contract and the lien shall exceed the contract price. If a partial payment has been made, what remains unpaid of the contract price is the limit to which the lien for labor can be enforced. Construed thus, the statute gives a lien for labor performed to the extent of its worth, limited only by the amount of the contract debt unpaid. The statute does not do away with the contract.
It follows that the third and fourth rulings requested were immaterial, and were properly refused.
Exceptions overruled.
The ruling asked for was as follows: “ The note for $150, received by the petitioner from Sheldon, was pro tanto a payment under his contract with Sheldon.”
These requests for rulings were as follows: “ 3. Payment of part of the entire price of labor and materials performed and furnished under an entire contract cannot be applied to either the labor or materials separately, so as to