| Conn. | Jun 6, 1883
This is a complaint to foreclose a mechanic’s lien predicated upon materials and labor furnished by the plaintiff in erecting a dwelling house for the defendant on his land. The appeal seeks to set aside the judgment obtained by the plaintiff in the court below upon sundry technical grounds, which we will consider so far as may be necessary to determine whether the judgment ought to be reversed.
One prominent objection is that the certificate of lien states the amount of the claim as $1,684.91, and alleges that amount as the value of the materials and labor, while' the bill of particulars filed in the case on motion of the defendant gives items aggregating the sum of $2,756.56. This discrepancy is fully explained by the pleadings and the finding, which show that the certificate claimed"a lien only for the balance due, while the bill of particulars contained no credit of the payments made by the defendant. The objection assumes that the law requires that the entire amount of labor and materials must be truly stated, and the payments :also, and that if the bill of particulars furnished, on the
But it is said that the amount of materials and labor shown by the bill of particulars, exceeding the allegation in the certificate, vitiated it. Not at all. The essential thing under the statute to be stated was the amount of lien 'claimed. That was stated, and necessarily it involved a statement of the balance claimed to be due. When the plaintiff was required to file a bill of particulars it was necessary to give all the items of materials and service from which his claim for a lien resulted, no matter what their aggregate amount. The defendant wanted notice as to these items, but as to payments he had presumably equal knowledge with the plaintiff; if not, he might have asked the court for a further order on the plaintiff. He made no
. And .where the person filing the certificate claims too great a sum, it will - not invalidate his lien (certainly as between the parties) unless his misstatement was intentional. Smith v. Norris, 120 Mass., 63; Kneeland on Mechanics’ Liens, § 165; Phillips on Mechanics’ Liens, § 336.
But the committee further finds that the bill of particulars contained ' sundry items for materials and labor upon other buildings than the one covered by the lien, and upon this fact another objection is based. It must be conceded that these items were not proper in a bill of particulars to show the debt represented by the lien. But the vital point of the objection is to show that these items found their way into the amount of the lien, so that they cannot be distinguished and eliminated and the true amount ascertained. If all this is true we do not'think the proceedings can be vindicated. Baker v. Fessenden, 71 Maine, 292.
We think, however, that we are justified by the finding in holding that these objectionable items were eliminated. The defendant, in addition to the general denial, pleaded payment of certain sums and a tender of another sum, but claimed no special application of the sums paid or tendered. The plaintiff’s replication admitted that the sum of $1,095
Now the law is so that the defendant, having the control of his own funds until payment, might have applied the money on either account as he chose. But where the money has been paid without a special application, the party to whom it is paid then has full control of the fund with the full right to appropriate it. Kneeland on Mechanics’ Liens, §§ 114, 115; McQuaide v. Stewart, 48 Penn. St., 198.
In this case there is no pretence that the defendant made any application of the funds paid. The plaintiff specially avers an application made on his part to the non-lien items until they were fully paid. The committee might have been more explicit in the finding of this issue. After stating the payments (as claimed by the plaintiff) the finding is, — -“both of which payments were applied by the petitioner upon account, leaving an indebtedness in his favor against the respondent at the time of filing this lien for the labor performed and materials furnished in the construction of said house of $1,669.75, less certain deductions hereinafter specified.” Again, after making the deductions referred to, the committee finds “the respondent indebted to him” (the petitioner) “ for materials furnished for the house and labor rendered thereon, * * in the sum of $1,277.89.” This language does not well admit of any reasonable construction other than that the payments had been so applied by the plaintiff on account as to leave the amounts mentioned for services and labor on the particular house covered by the lien.
It is also objected that the certificate does not state truly either the date of commencing or of . ceasing to furnish materials and labor. The commencement' stated is the 25th of March, 1875. The finding is that the petitioner, having been engaged by the respondent to repair an old house for him, on the 25th of March, 1875, commenced
The other objection, that the date when the plaintiff ceased to furnish materials and labor is not correctly given, is immaterial, as was held by this court in Cole v. Uhl, 46 Conn., 296" court="Conn." date_filed="1878-06-15" href="https://app.midpage.ai/document/cole-v-uhl-6580780?utm_source=webapp" opinion_id="6580780">46 Conn., 296.
• It is however indispensable that the certificate be filed within sixty days after the completion of the work, and herein is the real objection upon which the defendant relies in this part of the case. The certificate was mot filed until the 80th of November. If the plaintiff ceased to furnish materials and labor, as claimed by the defendant, on the 6th of August previously, there was no valid lien. The finding of the committee on this point is as follows: — “ The house was substantially completed on the 6th day of August of the same year, and the respondent entered into it during the month of August of the same year, and has ever since lived in the same. That on the 25th day of September, 1875, the petitioner furnished and put on some base knobs, for which he oharged one dollar, and sometime during the
The finding that the house was substantially completed on the 6th of August would be controlling were it not for the additional facts also found. Before the end of the next month the blinds for the house were furnished and hung, making an item of over ninety dollars. It can hardly be doubted that a work of this importance and amount ought to be included. But it appears that after this there intervened a period of more than sixty days before the filing of the lien. So that there is nothing-to save the lien unless the work and materials furnished on the 22d of November can be included. This amounts to only $14.13. If it appeared that this work might have been added by the builder for the mere purpose of saving his lien we should not feel disposed to sanction it; or if, after the work apparently closed by the putting on of the blinds in September, third parties had acquired an interest in good faith for a valuable consideration, the additional work might come within the principle of the decisions in Flint v. Raymond, 41 Conn., 510" court="Conn." date_filed="1874-10-15" href="https://app.midpage.ai/document/flint-v-raymond-6579922?utm_source=webapp" opinion_id="6579922">41 Conn., 510, and Sanford v. Frost, id., 617; although the marked difference in the period of delay would occasion some hesitation.
But in the case at bar the work was done at the request of the defendant, and not at the mere instance of the plaintiff, and as to the main part of the work, namely, putting in glass in the cellar windows and preparing for an inside cellar door, we can see that it was necessary for the comfortable habitation of the house in winter; and furthermore we have a case where the original parties, the builder and the owner of the house, only are eoneei’ned. We think
There was no error in the judgment complained of.
In this opinion the other judges concurred.