117 Mass. 167 | Mass. | 1875
The respondents contended, before the auditor, that the petitioner had no lien, because his certificate was not filed in season, and also because he knowingly and wilfully claimed more than was due. He then made no objection to the consideration of these questions by the auditor. It may well be doubted whether he can object for the first time, when the report is read at the trial, that the auditor had no authority to pass upon them, see Fair v. Manhattan Ins. Co. 112 Mass. . But as an important question of practice is involved, we do not rest the decision on that ground.
It is well settled that an auditor is authorized to hear and determine all questions incidental to and necessarily involved in a statement of the accounts and which are essential for the correct
In proceedings to enforce a mechanic’s lien, the inquiry is not merely to determine what is due from the respondent to the petitioner for labor and materials furnished, but what is due for which the petitioner .can enforce a.lien upon the land. When therefore the court, finding a careful examination of accounts necessary, in the exercise of its discretion, sends such a case to an auditor to hear the parties, examine their vouchers, and to state their accounts, those accounts are referred to and included in the order, which relate to the subject matter of the inquiry, and bear directly- upon the question to what extent the plaintiff has a lien upon the premises. All matters of fact legitimately involved, and bearing upon the question of the lien, 'are within the scope of the auditor’s authority to hear and determine. At the threshold of his investigation is the question, whether the certificate was seasonably filed. If not, the lien is dissolved, and there is no account to be stated. So if it is alleged that the petitioner has knowingly and wilfully claimed in his certificate more than is due, the proceedings aie invalidated and the lien cannot be enforced. Both are essential and vital questions bearing upon the issues presented to him and to be decided by him. The findings of the auditor on these points were within his authority and properly read to the jury.
There was evidence before the auditor that the petitioner, while performing the labor for which he here claims a lien, was also at
It does not clearly appear that Allen, who was the mortgagee, and was advancing money to Greenlaw to pay for the buildings in process of erection on the land, had any authority from Green-law to pay the $250 to the plaintiff.. It was properly left to the jury to determine that question.
It is also urged, that as Greenlaw did not own the land when he made the contract with the petitioner, no lien ever attached in favor of the petitioner for the labor performed and furnished under the contract. The material facts are, that on November 6, the plaintiff made an oral contract with Greenlaw to lay the bricks for six houses on the land in question. On November 9, Greenlaw took his deed of the land from Allen. On November 23, Greenlaw being then the owner, the petitioner commenced to work under his contract made on November 6 ; and no question is made that he did so with Greenlaw’s consent. The case differs from Hayes v. Fessenden, 106 Mass. 228, relied on by the respondents. In that case Hayes made his contract with Fessenden, who was not the owner of the land at the time ; the consent of the owner was not obtained; and Fessenden did not become the owner till after the work was completed. There was no labor performed by virtue of an agreement with or by consent of the owner, and no lien attached under the Gen. Sts. o. 150. But in
Exceptions overruled.