Dodge v. Hall, 168 Mass. 435

168 Mass. 435 | Mass. | 1897

Allen, J.

The sufficiency of the description of the land was rightly left to the jury. A description is sufficient which will enable one who is familiar with the locality to identify the land with reasonable certainty; and inaccuracies will not vitiate the lien, if the land can be so identified. St. 1892, c. 191. Cleverly v. Moseley, 148 Mass. 280. Phillips, Mechanic’s Liens, §§ 379, 383, and cases there cited. Under proper instructions, the jury must have found the description to be sufficient, and we cannot say that they were wrong.

The respondent contends that it is a part of the petitioner’s description, that the lot of land was owned by Charles E. Hall and Margaret H. Hall at the time when the labor was furnished, while it is an undisputed fact that they were never joint owners of the land. If this is treated as a matter of description, it is merely an inaccuracy, which is not fatal.

The respondent further contends that the petitioner has no claim against her, and no lien upon her property, and that his claim is only against Charles E. Hall and his property. The land was owned by Charles E. Hall until August 17, 1894, and under the instructions by the court, the jury must have found that the labor, both before and after August 17, was performed and furnished by the petitioner under a contract with Hall, by the terms of which Hall employed him generally to perform and furnish the labor necessary for the construction of the house, and promised to pay him a fair and reasonable price therefor. . If work is done under such a contract made with the owner, a conveyance by him while the work is going on will not defeat the lien. Gale v. Blaikie, 126 Mass. 274. The lien continues till all that is called for by the contract has been done.

Upon the facts found by the auditor, the house was real estate. McIver v. Estabrook, 134 Mass. 550. Westgate v. Wixon, 128 Mass. 304. Madigan v. McCarthy, 108 Mass. 376.

The court rightly refused to instruct the jury that the burden of proof was on the petitioner to show that the lot of land was actually bounded northerly on Garfield Avenue. The way this question arose was as follows. The description in the petition bounded the lot northerly on Garfield Avenue forty feet. The respondent offered evidence to show that the street was not in fact Garfield Avenue, and was never known by that name, but was really Vine Street, and always known as Vine Street, and never otherwise. To meet this, the petitioner offered evidence that it was known as Garfield Avenue. The description would be satisfied, to a reasonable intent, by proof that the street was known as Garfield Avenue, whether that was the true name of the street or not.

It was competent to allow the amendment of the petition. Pub. Sts. c. 191, § 20. Brosnan v. Trulson, 164 Mass. 410.

Exceptions overruled.