Jones v. Keen, 115 Mass. 170

Jones v. Keen

115 Mass. 170 | Mass. | 1874

Endicott, J.

This case presents for decision questions raised upon the bill, answers, master’s report, and the exceptions thereto. *179Tile parties, including all who have entered a formal appearance, filed answers or offered proof of claims, and have an interest in the proceeds of the sale of the barque Etta Loring, are twenty-seven in number, representing twenty-eight different claims, which have been passed upon by the master. This enumeration does not include the owner, who is a mere nominal party having no interest in the result. These parties may be divided into two classes: there are twenty-four, who claim liens for labor performed and materials furnished in the construction of the barque under the Gen. Sts. c. 151, §§ 12, 13, 14 ; and three, who claim under four different mortgages made upon her hull by her owner Keen, during her construction; the third and fourth mortgages being held by the same persons.

No question is raised and no objections are taken to the finding of the master, in allowing a large number of the claims for labor and materials, or in rejecting several because the parties had wilfully and knowingly claimed more than was due, in the certificate of their claims, filed in the town clerk’s office, § 13, supra. But in the master’s report and the exceptions thereto, questions both of law and fact arise in regard to certain of these claims passed upon by the master, including that of the plaintiff, and also including the master’s decision upon the compensation to be allowed the receiver. Questions are also open respecting the rights of the several mortgagees to share the proceeds, and it is insisted by the parties, holding the second, third and fourth mortgages, that this bill cannot be maintained, because the plaintiff has a full, complete and adequate remedy at law. These questions will be considered in reverse order.

1. In considering whether this bill should be dismissed because the plaintiff has a remedy at law it will be necessary to examine somewhat the facts, and the circumstances under which this question is presented. It is raised by Lewis & Co., who hold the second mortgage, and Patton & Ginn, who hold the third and fourth mortgages. All the other parties desire to proceed under this bill, as affording the most speedy and satisfactory determination of their rights, and of the numerous questions presented. Indeed it would raise serious complications, and work much mischief if it should be necessary at this stage to dismiss the cause. The bill "seeks not only for a determination of the various liens *180upon the vessel for labor and materials, but that the mortgagees may be enjoined from selling under their mortgages, and that a receiver may be appointed to finish the vessel and sell her for the benefit of all parties. At the hearing May 22,1871, to determine whether a receiver should be appointed and the mortgagees enjoined as prayed for, the order passed by the court to that effect and also the order appointing the master seem to have been assented to by all parties. One member of the firm of Patton & Ginn was present at the hearing and made no objection. Before the sale of the vessel by the receiver, July 11, 1871, both Lewis & Co., and Patton & Ginn, had notice that the sale would take place on that day, and had retained counsel, who consulted with the counsel for the plaintiff, and no objection was made to the proposed sale or to any of the proceedings. On August 14, following, both these parties entered a formal appearance on the docket, employing the same counsel. The hearings before the master commenced October 4, and were continued from time to time until November 9, 1871. At these hearings these parties were present in person and by counsel, taking part in the proceedings ; some of them were examined as witnesses, their mortgages and certain certificates they had filed were put in evidence, and they were heard, as other claimants. After the ease was closed before the master, they filed answers on January 15, 1872, and for the first time they raised this question, denying the jurisdiction because there was a full, adequate and complete remedy at law. We do not think it was then open to them. They, submitted to the jurisdiction, made no objection to the appointment of the receiver or to the sale, and tried their case before the master to obtain their share of the proceeds. If they intended from the first to raise the question, they did not act in good faith in delaying until January 15,1872. If it was an afterthought, having taken their chance with the others at the hearing, it was too late to raise it at that stage of the proceedings. No one appears to have consented to the filing of these answers, and all the other parties oppose the dismissal of the bill. We do not therefore think it necessary to consider the question thus raised. The objection, so far as these parties have the right to avail themselves of it, we must consider to have been waived. First Congregational Society v. Trustees, 28 Pick. 148. Russell v *181Loring, 3 Allen, 121. Dearth, v. Hide Leather National Bank, 100 Mass. 540. Lawrence v. Bassett, 5 Allen, 140.

2. These mortgagees also contend that their mortgages have priority to the claims for labor performed and materials furnished in the construction of the barque. We think it well settled that they have no such preference, but that liens attach and have priority over mortgages, and this is clearly so where the mortgages are created after the contract. The mortgage of Lewis & Go. was not recorded till May, 1871, and the mortgages of Patton and Ginn were recorded in November, 1870, and all the contracts for labor and materials appear to have been made prior to that time, as the work on the ship was suspended in December, 1870, by reason of the insolvency of Keen. Allen Prior, who holds the first mortgage, does not raise this question. Donnell v. The Starlight, 103 Mass. 227. The Granite State, 1 Sprague, 277. Dunklee v. Crane, 103 Mass. 470. The Kiersage, 2 Curtis, 421.

3. Objection is made by Allen Prior, the first mortgagee, in his exceptions to the master’s report, to the amount allowed by the master to the receiver as compensation for his services, and also for counsel fees. The basis upon which the receiver estimated his services, a commission of five per cent, on the sale, was incorrect. It was held in Grant v. Bryant, 101 Mass. 567, that the compensation of a receiver could not be determined by a fixed commission on the amount of money passing through his hands, but such an amount should be allowed as would be reasonable for the services rendered by a person competent to perform the duty. The master, objecting to the basis adopted by the receiver, determined the sum charged to be reasonable and allowed it. We see no reason to disturb his finding upon the evidence reported. Nor do we see any reason for disturbing the finding of the master, allowing in the disbursements of the receiver a charge for counsel fees. No objection was made before the master to the propriety of his employing counsel or the reasonableness of the bill. The master was not requested to report the evidence on the subject. We are therefore unable to pass upon that question, and it is not open on the exception. An exception to the finding of a master upon the facts before him is to be regarded only so far as it is supported by the statements of the master, or the evidence reported by him. Harding v. Sandy, 11 Wheat. 103. Adams v. Brown, 7 Cush. 220.

*1824. Another objection made by the same party, that the master had no authority under the order of the court to decide upon controverted facts, but could only report evidence, is equally untenable. It is the province and duty of a master to report his conclusions of fact upon all matters referred to him; in the order appointing him in this case there is no such limitation or restriction as to preclude him from the performance of his accustomed official duty. Dean v. Emerson, 102 Mass. 480.

5. Several parties except to the finding of the master allowing the claim of the plaintiff. A large amount of testimony is reported on this point. The two principal objections raised are that the lumber was furnished on general account and not for the Etta Loring, and that during the building of the vessel notes were given by Keen in payment. The findings of a master are not to be set aside without clear proof of error or mistake on his part. Upon reviewing the testimony we find that there was direct evidence that the lumber was furnished for the Etta Loring ; and that, although during her construction notes were given by Keen to the plaintiff, they were given for his accommodation, not to be credited on the bill, and without regard to the amount due. Evidence to contradict and control this on both points was introduced, but it was for the master to decide upon the preponderance of the evidence submitted, and we cannot say that there is such proof of error or mistake on his part as would justify the setting aside of his finding. Keen never paid any of these notes, as they were accommodation notes, not given on account of the bill for lumber. The fact that they have not been surrendered to Keen does not prevent the plaintiff from proving his claim, which the master finds is still due and unpaid.

The fact that an item for materials actually used in another vessel was included in the plaintiff’s certificate, filed in the town clerk’s office, does not invalidate his claim, as the master finds he did not know it at the time of filing, and did not wilfully or knowingly claim more than was due. Gen. Sts. c. 151, § !4.

The other exceptions based upon the incidental statements of particular witnesses, or upon the fact that the plaintiff did not contradict them, cannot affect the general finding of the master. The master’s finding on this claim must therefore stand.

*1836. Exceptions are taken to the allowance of the claims of Andrew Sampson and others, and of Edmund H. Sears. Both the claimants made a contract with Keen, one to do the caulking, the other the outboard joining on the barque, and also on a schooner for a round sum for both. No apportionment was made of the amount of labor to be performed or the sum to be paid on either vessel.

In making the estimate of the lien to which each claimant is entitled, the master bases his finding in the case of Sampson and others, on the comparative tonnage of the two vessels, and the cost per ton of doing the work contracted for; and in the case of Sears on a fair compensation for the work done on the barque in proportion to the fair price to be paid under the contract for the whole work done. It is obvious that elements are here introduced not included in the original agreements for a round sum, and in the absence of any statute provision giving a lien in such case, we think no lien exists. The considerations controlling each party in making such a contract we cannot now determine.

It does not appear in terms or by implication to have been based in the first case upon the tonnage of the two vessels, or the cost per ton to do the work on each; nor in the second, upon a fair compensation for doing a portion of the work on the barque. It has been held that upon a general contract to furnish material or labor for one or more vessels or buildings, no entire sum for the whole being stipulated, but the same to be furnished at certain rates, or without any rate being named, then the amount furnished on each particular vessel or building may be estimated and a lien attach for the same. Rogers v. Currier, 13 Gray, 129. Briggs v. A Light Boat, 7 Allen, 287. Shaw v. Tompson, 105 Mass. 345. The Kiersage, 2 Curtis, 421. But these claims being based upon an entire contract for a round sum, do not fall within the rule laid down in these cases; but are to be governed by the principles stated in Morrison v. Minot, 5 Allen, 403 ; Graves v. Bemis, 8 Allen, 573; Mulrey v. Barrow, 11 Allen, 152; Driscoll v. Hill, 11 Allen, 154; where it was held that on a contract to furnish labor and materials for several buildings for a gross sum, no- lien could be enforced upon one of' the buildings. The St. of 1872, c. 318, was probably intended to meet the difficulty suggested in these cases.

*1847. Upon the claim of Jones and Cottrell the master submits the facts for the decision of the court. It appears that they had a written contract with Keen, dated August 15, 1870, to do certain work and furnish certain materials for the barque Etta Loring, and also for the schooner D. K. Ham, for the gross sum of $2200. If the claimants relied only on this contract, their lien would fail for the reasons above stated. But they in fact rely on a substituted contract. Some time after the schooner was finished the first contract was annulled and destroyed, and a new contract was made relating solely to the barque, wherein they agreed to do certain work for $1700, and to furnish certain materials for $300, and this new contract was dated back to correspond to the date of the original contract, August 15, 1870. J ones, one of the partners, was a witness ; he was unable to tell when the second contract was written, but said that it was not as late as February, but he would not swear that it was not as late as January, 1871. He also stated that the old contract was torn up and the new one substituted, “ because he thought his lien would be better on the ship.” In the certificate of lien filed in the town clerk’s office January 10, 1871, they claim $1925 due upon the last contract, deducting $75 for labor and material contracted for, but not furnished to Keen. In proof of this they offer the substituted contract. This clearly is not the contract under which the labor and material were furnished. It differs materially from the original in applying to one and not to two vessels. It is impossible to tell what was due for labor and material on the schooner. The apportionment attempted is purely arbitrary, made after Keen’s insolvency, for the purpose of preparing the new contract and to obtain an unfair advantage. As the work was done and the material furnished under the first contract, and as no apportionment can be made between the schooner and the barque, the lien must fail and the claim be disallowed.

8. Upon the claim of Amos Merritt and others, a question arises upon the alternative report of the master, whether they shall be allowed not only for their personal labor, but for the labor of persons employed by them. The language of the statute provides for this. When “ money is due to any person for labor performed, materials used, or labor and materials furnished,” “ such *185person shall have a lien,” &c. Gen. Sts. c. 151, § 12. It is true that the laborer, whose labor is thus furnished by the party making the contract and claiming the lien, may also enforce his lien, but the statute contemplates this, and provides in section 19 against the enforcement of a double hen for the same labor. See also the St. of 1862, c. 185. The larger sum found by the master, which includes the labor furnished, should be allowed.

9. The facts are also reported by the master upon the separate claims of Hiram and Nathaniel Delano, for the decision of the court. The facts are the same in each. Both claimants are blacksmiths, employed by Keen, at day’s wages, to work in his shop in making spikes, bolts, &c., for this barque. During the time they were thus working they did some work on other vessels, and some outside work at Keen’s direction. At the end of each week they made a memorandum of their labor performed on the spikes, bolts, &c., which went into the barque. This the master finds correct, and for the amounts thus found respectively, they claim a lien. No payment had been made to them for their work. They were not mere laborers as in the case of The Qalisto, Daveis, 29, where from the course of employment no presumption of contract to furnish labor for a particular vessel could arise ; nor were they employed as blacksmiths under a general agreement for labor without any specific application thereof to a particular vessel, as in Read v. Hull of a New Brig, 1 Story, 244. They were by their agreement to make the bolts, spikes, &c., for the barque in the yard in which she was building, and did other work occasionally at Keen’s direction. As an accurate memorandum of the amount of this work was made, as found by the master, we think they were entitled to a lien.

10. The several claims of Henry, Dobbin, McLean and Sproule, were properly disallowed ; they having in their several certificates filed in the town clerk’s office knowingly and wilfully claimed more than was due.

The result is that all the claims for lien by reason of labor and materials furnished, in the amounts found by the master are allowed, and are entitled to be paid from the fund, excepting the four rejected by him, and excepting also the claims of Cottrell and Jones, Andrew Sampson and others, and E. H. Sears. After the payment of the hens the mortgages are entitled in their order. The terms of the decree to be settled by a single judge.