Patrick v. Smith

| Mass. | Sep 8, 1876

Ames, J.

The St. of 1872, c. 318, upon which the respondent grounds one branch of his defence, is not applicable to the case. The purpose of that statute was merely to provide that in any case where the claim is made up of labor and materials furnished, and the lien for the materials fails to attach for want of the notice required by Gen. Sts. c. 150, § 2, the lien for the labor performed shall nevertheless be preserved, provided it can be distinctly shown what the labor was worth. In such a case the statute also requires that the number of days of labor performed or furnished, and the value of the same, shall be specified in the statement filed with the clerk of the city or town. But the contract under which the petitioners’ claim arises was for labor only, and therefore there was no necessity to specify the number of the days of labor as a separate item.

The remaining objections urged by the respondent against the petitioners’ right of action are also untenable. In the absence of any evidence tending to show that the owner of the building was not also the owner of the land upon which it stands, the averment in the written claim filed with the city clerk, that the block of buildings was supposed to belong to the respondent, may be considered as applicable to the land under and adjoining the building. The averment that “ they ” performed the labor, and the manner in which the labor is charged, amount to an averment that they performed it jointly and as partners. The description of the land upon which the buildings stood was a sufficient identification for the purposes of this process. The name of the owner was given by the terms of the written statement as T. H. Smith, and it appeared that at the time when that statement was filed, this was all that the petitioner, Lord, by whom it was filed, knew as to the defendant’s name. See Kelly v. Laws, 109 Mass. 395" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/kelly-v-laws-6416834?utm_source=webapp" opinion_id="6416834">109 Mass. 395. Gen. Sts. 150, § 5. And the description of the work done, as given in the statement, is sufficient to show that it was done in constructing, altering or repairing the respondent’s building within the meaning of the statute. The petition contains a sufficient averment of the contract under which the work was done, and the statute does not require any more particular account of the authority of George A. Patrick, the original contractor, to employ the petitioners to do the work.

Exceptions overruled.