179 Mass. 597 | Mass. | 1901
These are three separate petitions to establish liens on three separate lots of land, on each of which the petitioner Osborne built in the year 1900 a dwelling house. The houses were built in accordance with a written contract entered into on January 16, 1900, between him and the respondent Barnes, which fixed the compensation to be paid Osborne for building two of the houses at the sum of $1,500 each, and that to be paid for building the other house at $1,200. Osborne sublet to the intervening petitioner Whitbeck a certain part of the work of building each house, and Whitbeck not having been paid has intervened in each of the several petitions and has asked to have his lien for labor established upon the lot described in the petition in which he intervenes.
1. The first contention of the excepting parties is that Osborne’s liens cannot be established because the contract between him and Barnes shows that no liens were contemplated by it. There is no foundation for this contention. By the contract Osborne agreed to build the three houses, two for $1,500 apiece and one for $1,200, and Barnes agreed to pay for the same $750 on each of the $1,500 houses as soon as the shingles and clapboards should be on, and the remaining $750 on each as soon as each should be finished, and to pay $600 on the other house as soon as the shingles and clapboards should be on, and the other $600 when that house should be finished. In Ellenwood v. Burgess, 144 Mass. 534, the contract which it was said must be interpreted as a waiver of any lien upon the land called for payment in promissory notes upon four months’ time. Here the contract does not stipulate for a credit inconsistent with the enforcement of the lien given by statute, and cannot be construed as a waiver.
2. The second contention is that the contract is an entire one and that three liens cannot be established for work done under it. But the contract was for the erection of three separate houses with a distinct price for each, one house on each lot, the lots not being contiguous. A separate lien for materials and labor on each house is given by statute, and the circumstance that there was but one written instrument is immaterial to the enforcement of the lien. The instrument contains three contracts, one in respect of each of the three houses. This distinguishes the present cases from Batchelder v. Rand, 117 Mass. 176, and other cases cited for the respondents, in which two buildings were erected on the same lot under one contract.
4. It is contended that there was error in establishing Osborne’s liens in an amount which covered matters not called for by the original contract. In dealing with this question we assume in favor of the mortgagee that any change of plan agreed to between the builder and the owner of the equity after the making of the mortgages could not authorize the establishment of liens in favor of the builder for an amount in excess of that called for by the contract as it stood when the mortgages were made. But, in the present cases, it is not shown that the extra charges accrued after the making of the mortgages. The find
5«. The contention that Osborne did not file a just and true account is sufficiently answered by the finding to the contrary of the auditor and the decree establishing the liens.
6. The considerations already noted show Whitbeck’s right to liens for the labor furnished by him under his sub-contract with Osborne. That contract was made on March 20 and work was begun under it on the next day. Dunklce v. Crane, 103 Mass. 470. Batchelder v. Rand, 117 Mass. 176. We see no error in the course pursued by Whitbeck to establish his liens on the respective lots. Osborne’s petitions were pending and he properly intervened in each petition, and the amount due him for labor on each house was ascertained and his lien therefor duly established upon his intervention in each suit. Pub. Sts. c. 191, § 19.
7. Assuming that the appeal of the respondent Barnes brought up the case as to all'parties, no harm has been done to either respondent by the refusal of the court to give the ninth ruling requested. Both excepting parties have been fully heard in the Superior Court and here.
jExceptions overruled.