176 Mass. 233 | Mass. | 1900
This is a petition to enforce a mechanic’s lien. The statement was filed on March 11, 1898, and the petition on May 9, 1898. Continuous work under the contract stopped on December 21,1897, and the respondents contend that the statement was filed too late. The petition, however, had items for labor on January 11 and 24, and on February 14, which last, of course, would make the statement in time, although the item was small, if the work was done in good faith under the same contract with the rest, for the purpose of completing that contract, and not under a different one, or merely for the.purpose of enabling the petitioner to file a statement. Monaghan v. Putney, 161 Mass. 338. Miller v. Wilkinson, 167
The petitioner testified in terms that “ the work continued right through until February 14,” and also as follows: “ I claimed I did the last work February 14; at that time I never thought of a lien at all; . . . the work in January and February was a continuous work on my contract; the work which was done on the 14th of February amounted to $1.86 to finish up the job.” In view of this it is impossible to say that there was no evidence to warrant the finding, although there was other testimony that tended to enhance the suspicion naturally, roused where a lien is saved by a small job being done months after the body of the work was finished, and a job which the petitioner himself characterizes as repairing or redoing work which had been done before. In this case, however, the good faith of the petitioner is not questioned. The instructions asked upon this point, so far as they implied a general ruling for the respondents, properly were refused. So far as they meant that if the contract had been performed before February 14 the petitioner could not recover, they were given in substance. The judge was not bound to adopt the words or the dramatic form in which the work of February 14 was presented by the respondents as a trifling after repair.
The petitioner’s foreman testified that on February 14, after erecting a staging over the respondents’ platform scales for the purpose of fixing some sheathing, the petitioner’s men stopped further work there because it interfered with the respondents’ use of the scales, and that they then eased a door and some windows which had become swollen. The respondent Wiley also testified that he accepted the work from the petitioner on December 18, and the carpenters- and laborers quit work on that day. The respondent asked the judge to rule, 1. That if the only work done on February 14, 1898, was the mere easing of a door which had sagged, and a window which had swollen from dampness after they had been built by McLean and accepted by Wiley, the petitioner cannot recover for any labor and material furnished prior to that date. 2. That on the evidence the petitioner cannot recover more than $1.86, the charges for work done on February 14, 1898. The judge instructed the jury that if, after December 22, the petitioner in good faith, in the honest execution of his contract, performed any labor which