Dewolf v. Bonee, 101 A. 233

101 A. 233 | Conn. | 1917

There are numerous exceptions to the finding and to the refusal of the trial court to find certain matters which the appellant claims were established by the evidence; but only one of these merits consideration. This exception relates to the foundation of the plaintiff's cause of action. In this connection it appears that the plaintiff contends that the court below erred in holding, from the evidence, that the defendant in good faith paid the full contract price for the materials used in the construction of his cottage before he had any knowledge or information that the plaintiff was furnishing materials for his building. The plaintiff insists that this conclusion is not justified by the evidence which is before us, and we are asked to correct the finding so that it will express an opposite conclusion.

An examination of the record discloses that the evidence upon this branch of the case was conflicting, and that the weight of it tended to sustain the defendant's contention that the payments made to Hepburn, the contractor, were made in good faith. The proof relied upon by the plaintiff to show that the payments made by the defendant to Hepburn were not made in good faith, was that the defendant had a general knowledge that some one besides Hepburn was furnishing materials for the construction of his building. This was not enough. "Everybody who contracts for a building must know in a general way that the contractor is not doing the work with his own hands, nor, as a rule, with his own stock of materials. The statute, however, contemplates a degree of knowledge sufficient to give written notice to each person who has furnished materials or rendered services, and that must involve a knowledge of the names of such persons and of their relation to the work. The plain implication of the statute is that only persons so known are entitled to notice." Hubbell, Hall Randall Co. v. Pentecost,89 Conn. 262, 268, 93 A. 672. The record discloses that there was evidence from which the court could have reasonably reached a conclusion favorable to the defendant's contention upon the question of good faith, and therefore the motion to correct is denied.

There is another serious objection to the validity of the plaintiff's claim against the defendant. A careful examination of the record discloses that the amount of his claim cannot be ascertained. It appears that the plaintiff did not take the necessary steps for laying the foundation of a claim for a lien against the defendant's property, as he kept no separate account of the materials furnished by him which were used in the construction of the Bonee cottage. The record discloses that the materials for both cottages were sold to Hepburn for a round sum and under one contract. These materials were delivered to Hepburn and used by him in the construction of both cottages. There is nothing to indicate how much was used in the construction of either cottage. There is nothing to show that the amount now claimed to have been delivered for the Bonee cottage was in fact used for any such purpose. The plaintiff's claim does not meet the requirements of our statute, in that it does not appear how much was in fact used in the construction of the defendant's building. In the case of Larkins v. Blakeman,42 Conn. 292, 293, this court stated: "The materials were not charged in a separate account, but in a general account, including charges for materials furnished for other buildings. In respect to that, however, perhaps the finding shows with reasonable certainty that the amount claimed was actually expended in the two houses. The value of the materials furnished for each house does not appear. The aggregate value of the materials for the two houses is stated, a single lien is claimed covering both houses and the lots on which they stand, and one certificate only is filed. The record therefore does not show, and it is impossible now to ascertain, the amount furnished for each house. This is a fatal objection." The Larkins case was one in which materials were furnished, under separate contracts, for two houses that were being constructed by the same builder upon adjoining lots, one being commenced about six weeks before the other. No separate account was kept of the materials furnished to either house and it could not be ascertained how much had gone into either.

The plaintiff in his certificate of lien states that he has "furnished materials and rendered services in the construction of a certain building owned by said Joseph Bonee and situated in the town of Old Lyme, on a lot of land belonging to said Joseph Bonee," and then he claims a lien "on said building and land on which it stands." It now appears that the certain "building and land on which it stands" were two separate building owned by different parties, and located upon separate tracts of land. It is plain that such a lien does not meet with the requirements of our statute.

There is no error.

In this opinion the other judges concurred.