McCormack v. Butland
191 Mass. 424
Mass.
1906
Check Treatment
Hammond, J.

This is a petition to enforce a mechanic’s lien. The question tried was whether the lien was established as *431against the mortgage held by Blackwell, the former owner of the property.

The contract of January 1, 1903, between the Butlands and Blackwell, then the owner, authorized and required the former to erect a house upon the land. By implication from the contract, Blackwell authorized the Butlands to employ either directly or through sub-contractors the necessary workmen to erect the house, and the labor thus employed was performed by his consent within the intendment of the statute. Hilton v. Merrill, 106 Mass. 528. McCue v. Whitwell, 156 Mass. 205, and cases therein cited. The evidence as to when this contract took effect was conflicting, but the jury, in answer to the fifth and sixth questions, found that it was made and took effect before January 2,1903. The jury, in answer to the seventh and eighth questions also found that before January 14,1903, the consent of Blackwell or of some person rightly acting for him as owner was shown by acts and declarations other than the contract of January 1, 1903.

If therefore the contract between the petitioner and the But-lands for the work was made before January 14, 1903, the lien would hold against the fee, notwithstanding the subsequent conveyances which were delivered on that day. It became therefore important to ascertain when the petitioner made his contract; and the tenth question framed for the jury was as follows: “ What was the date of the contract between Butland and the petitioner?” It does not clearly appear in the report whether this issue actually was submitted to them or not, but it does appear that after the verdict of the jury upon the fifth, sixth, seventh and eighth issues the judge directed them to answer the tenth by giving the date as January 2,1903. It is now objected by the respondent that upon the evidence the tenth issue presented a question of fact upon which it was the province of the jury to pass. And this is undoubtedly true. But the answer is that so far as material to the case the jury in the verdict upon the four issues upon which they returned a verdict had indicated their view on the tenth issue. It is to be borne in mind that the evidence as to whether before January 14, the time when Blackwell’s deed to Mrs. Butland and the mortgage back were delivered, Blackwell or any one acting for him as owner had any knowledge that *432this work was being performed by the petitioner was conflicting, the petitioner testifying that Blackwell had such knowledge and Blackwell testifying to the contrary; and it was left to the jury to find where the truth lay. They found that before January 14, 1903, Blackwell had such knowledge. This by necessary implication showed that the jury found that the petitioner’s contract was made and the work begun before January 14, 1903, or in other words that the jury believed the petitioner. When by their verdict so much had been made clear, it was plain that it was immaterial on what particular day of January before the fourteenth the contract was made. It was enough if it was made before the fourteenth. Moreover, in this proceeding it was within the power of the judge to withdraw from the consideration of the jury an issue which had become immaterial by reason of the verdict given; and the action of the judge in ordering the verdict may be regarded in substance as such a withdrawal. In any event the respondent was in no way harmed by the order.

Whatever errors, if any, there were in directing the answers to the other questions have become immaterial by reason of the verdict of the jury upon those decided by them.

The question of variance in the pleading * does not seem to have been raised at the trial, and we do not think it is open to the respondents on this report. The result is that the lien is established as against the mortgage and a sale decreed.

So ordered.

The variance relied on by the respondents was between the allegation in the petition, that Elizabeth Bntland was the owner of the land when the petitioner made the contract under which the work was done, and the answer to the first issue, agreed upon by the parties, that Elizabeth Butland was not the owner of the land when she made the contract with the petitioner.