| Mass. | Jan 1, 1877
The question presented by the bill of exceptions in this case is, whether the labor and materials for which a lien is claimed, though furnished and performed after a mortgage had been made of the estate, were so performed and furnished under a contract made before the mortgage. We are of opinion that they were not. In order to create a lien upon real estate by a paroi contract against a subsequent mortgagee without notice, it is necessary that the contract should be precise, certain and definite, not subject to be affected, modified and changed by the will of one of the parties. An agreement to do what is necessary to be done, for a fair price, when such necessity is to be determined by the owner, the work of which is not commenced until after the alienation of the building, is not a contract such as is contemplated by the statute. In the case at bar, the agreement of the petitioner, if called such, was to do the painting and papering required as cheaply as he could, and at fair and reasonable prices. It was the ordinary case of a mechanic, before entering upon labor for another, agreeing that he would thereafter do such work as the employer wished to have done. In this case, it was employment in painting and papering a house. As to the painting, the employer told the petitioner how many coats of paint he wanted on the outside, but did not tell him how many he wanted on the inside; he told him, also, that he wanted some of the rooms papered, but did not inform him which rooms, nor how many; neither was the kind or quality of the paper to be put on designated. It was after the mortgage that the papers were selected by the owner; and it was after the mortgage that the petitioner commenced to do work. On some of Üi° rooms
Upon examining the papers, however, we find an extraordinary state of things. The petitioner sets forth in his petition that he filed, in the office of the clerk of the city of Springfield, under oath, a just and true statement of his account, which he annexes to his petition. His petition alleges, and his account shows, that he performed the last labor on July 9, the day before the mortgage was executed. The account shows that its first item of charge was on June 13, and that by far the greater part of the account is before June 27, the day on which, by the bill of exceptions, the contract was made. This, if true, would create a lien upon the real estate. The bill of exceptions, however, finds that no labor was performed nor materials furnished until July 17, a week after the execution of the mortgage. Apparently therefore no statement of account for the labor and materials for which a lien is claimed was filed in the office of the clerk as required by law; or the whole account was antedated to a time before any part of the work was done and before the mortgage. If we were not satisfied that no contract sufficient to create a lien is disclosed by the bill of exceptions, we should need some explanation of the account thus stated to have been filed under oath. As the exceptions must be sustained and the case will stand for further proceedings in the Superior Court, we deem it necessary only to call the attention of the parties to the facts.
Exceptions sustained.