These three cases were consolidated for hearing before a Referee and were briefed and argued together on appeals to this Court by the defendant from judgments rendered against her in the Superior Court. Issues are raised which are not common to all three cases and therefore each case will be dealt with separately.
Pendleton v. Sard
On the basis of supportive evidence, the Referee found that plaintiff, with the knowledge and consent of the defendant owner, furnished labor and materials which entered into the construction of defendant’s dwelling house. Plaintiff alleged and proved full compliance with the provisions of 10 M.R.S.A., Secs. 3251 to 3255 inc., and became entitled to a lien therefor as found by the Referee. As to the dollar amount to be secured by lien, the fair and reasonable value of the lienable items necessarily had to be determined by evidence. Although the parties may by contract fix in advance what this fair and reasonable value of the items in place will be, no such contract was proven in this case. Thus it became proper to introduce evidence bearing on the question, “In what amount has the property been enhanced by the labor and materials furnished?” Bangor Roofing v. Robbins et al. (1955)
As testimony was adduced it became evident that the plaintiff had applied a markup to cover profit and transportation. Although not separately lienable, they are proper factors for consideration in determining the fair and reasonable value of the lienable items incorporated into the property. Bangor Roofing v. Robbins et al., supra. In the course of the cross-examination of the plaintiff, the defendant’s counsel was deprived by ruling of the Referee of the opportunity to inquire as to the hourly price actually paid by plaintiff to his workmen for their labor. This deprivation of the right of cross-examination on a material issue constituted prejudicial error. This error, however, adversely affects only the determination of the dollar amount ' secured by lien and in nowise taints the adjudication that plaintiff is justly entitled to a lien for the fair and reasonable value of the items which were shown by the evidence to have been furnished. The case must therefore be remanded for further hearing upon the sole issue of the fair value of the items heretofore properly determined to be lienable.
Counterclaim — Sard v. Pendleton
The defendant Sard incorporated into her answer to plaintiff’s complaint a counterclaim in effect asserting that the parties had entered into a contract by the terms of which Pendleton had agreed to construct defendant’s house according to plans drafted by defendant’s architect for a fixed price of $45,952. The defendant further asserted that plaintiff had failed to perform said contract to the damage of the defendant in the sum of $50,000.
The Referee found that the parties never entered into a valid and judicially enforceable contract and therefore gave judgment for plaintiff on the counterclaim. Under well established principles we treat the Referee’s finding as final if supported by credible evidence and not otherwise erroneous as a matter of law.
The architect requested that Pendleton and another contractor furnish estimates based on preliminary drawings which he had made. In the case of Pendleton the architect himself prepared the estimate and produced a figure of $45,952 which Pendle-ton then adopted as his own estimate of the cost of completion. An estimate was also received from the other contractor which was somewhat higher than the architect’s projection and was therefore rejected. The architect anticipated that in accordance with usual practice the estimate under normal conditions would come within 5 to 10% of actual completion cost. The preliminary drawings were not accom
It is unfortunate for both parties that plaintiff communicated his estimate to defendant by letter couched in somewhat ambiguous terms. On August 19, 1968 he wrote to inform her that he had “come up with a figure of ($45,952) for the complete job.” It is apparent that both parties thereafter proceeded on the basis of erroneous assumptions. Pendleton had done work for Mrs. Sard on prior occasions and always on a time and materials rather than a fixed price basis. He seems to have assumed that the defendant would expect to pay on a time and materials basis and would understand, as did her architect, that his proposed figure was merely an estimate. The defendant, however, obviously assumed that she had received an offer to build at a fixed price, which offer she had accepted by orally directing plaintiff to proceed with the work. She seems to have attached no significance to the fact that her architect informed her that the “estimate” included an allowance of $1,000 for a well but that it was “anyone’s guess what a well will cost since it is a matter that cannot be foreseen.” The words “complete job” were completely ambiguous as used on August 19, 1968 since at that time neither party had any information as to what would ultimately constitute a “complete job.” Thus their minds cannot be said to have met with respect to this essential point. This becomes increasingly evident when we note that the defendant admits that as the work progressed, new directives were given from time to time with respect to work completed or in progress. She acknowledges an obligation to pay for at least some of this additional work as “changes” or “extras.” But one is forced to ask, changes from what? The terms “changes” and “extras” are without legal significance until it can first be determined what the initial basic obligation of the building contractor was.
Based upon the foregoing considerations which we have summarized, the Referee found that no binding enforceable contract had been made by the parties upon which the plaintiff was obligated to the defendant. The Referee cited and relied upon Ross v. Mancini, (1950)
“There is no more settled rule of law applicable to actions based on contracts than that an agreement, in order to be binding, must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liability of the parties. Indefiniteness may relate to the time of performance, the price to be paid, work to be done, property to be transferred, or other miscellaneous stipulations of the agreement.”
The cited cases and the quoted statement of the law fully support the legal conclusions of the Referee as applied to the facts found. Although the Superior Court, in
Leach v. Sard
The plaintiff Leach by his complaint does not seek to impose a lien upon the defendant’s premises but rather seeks recovery as upon quantum meruit for the fair value of “goods sold and delivered and labor performed” for the defendant. The Referee made no detailed findings but merely awarded judgment for the amount claimed in the complaint. Here again the test is whether or not there is credible evidence to support the Referee’s conclusion.
Plaintiff was requested by Pendleton to do the excavation work on the site. Although the defendant knew of the work being performed on her premises by the plaintiff, there was no contractual relationship between them. Plaintiff submitted bills from time to time to Pendleton who in turn approved them and forwarded them to defendant’s architect. Upon his approval, the bills were paid by the defendant to Pendleton who then paid Leach. When the defendant stopped making payments to Pendleton she declined to pay the last bill submitted by Leach to Pendleton. Leach has not as yet instituted any action against Pendleton for his unpaid balance but has proceeded directly against the defendant owner.
The general rule almost universally followed was well stated in 53 Am.Jur.2d 932, Mechanics’ Liens, Sec. 418 in these terms:
“ * * * it is generally recognized— apart from, unjust enrichment * * * that subcontractors and materialmen have no right to a personal judgment against the owner where there is no contractual relation between them.” (Emphasis ours.)
We recognized this as the rule in Maine when in Thompson v. Heald (1961)
Without elaboration or analysis a long line of cases has adhered to the general rule above stated, basing the rule on lack of privity of contract. Alberti v. Moore (1908)
The statement of law above quoted, however, contained the phrase, “apart from unjust enrichment.” Under what circumstances, then, do we attach meaning to that reservation or exception? The lien statute itself affords the security of a lien to a subcontractor under appropriate circumstances without regard to privity of contract. But the contractual debt secured by lien on the owner’s property is in the case of a subcontractor ordinarily the debt owed him by the prime contractor. See Cole v. Clark (1893)
“Based upon the foregoing authorities, we hold that where a materialman or subcontractor furnishes labor or materials which benefit the property of a person with whom there is no privity of contract, an action on quantum meruit may lie against the landowner to recover the reasonable value of said labor and materials so furnished. * * * Each case must be decided according to the essential elements of quasi contract, to-wit: A benefit conferred upon the defendant by the plaintiff, appreciation by the defendant of such benefit, and acceptance of such benefit under such circumstances that it would be inequitable for him to retain the benefit without payment of the value thereof.
“The most significant requirement for a recovery on quasi contract is that the enrichment to the defendant he unjust. Consequently, if the landowner has given any consideration to any person for the improvements, it would not be unjust for him to retain the benefit without paying the furnisher. Also, we think that before recovery can be had against the landowner on an unjust enrichment theory, the furnisher of the materials and labor must have exhausted his remedies against the person with whom he had contracted, and still has not received the reasonable value of his services.” (Emphasis ours.)
The importance we attach to the opinion in Paschall’s, Inc. stems from the fact that it points up with some clarity that to deny quasi contractual recovery on the ground of lack of privity of contract is an oversimplification of the problem. On the other hand we note that none of the cases relied upon by the Tennessee Court as authority for affording recovery as upon a contract implied in law involved the intervention of a prime contractor between plaintiff subcontractor and the defendant owner. This suggests that we should look further for sound reasons, if any there be, for denying recovery under such circumstances.
In Guldberg v. Greenfield (1966 — Iowa)
Leaving open the question as to “whether an unusual situation might arise under other facts, which would result in unjust enrichment unless subcontractors were permitted to recover (from owners) in quasi-contract,” the Court in Lundstrom Construction Co. v. Dygert (1959)
We think the Texas Court of Civil Appeals approached the problem realistically when it denied a subcontractor the right to a personal judgment without making any reference to the lack of privity of contract. In Crockett v. Sampson (1969 — C.C.A.Tex.)
“Liability on quantum meruit is based on a contract implied in law. An essential prerequisite to such liability is the acceptance of benefits by the one sought to be charged, rendered under such circumstances as reasonably to notify him that the one performing such services expected to be paid therefor by him, the person sought to be charged. * * *
“There are no circumstances here which could have led appellee (subcontractor) to believe that anyone other than (the prime contractor) would pay him for the work and materials expended by him. No equities in behalf of appellee (subcontractor) against appellant (owner) are shown. There is no basis for a recovery in quantum meruit.” (Emphasis ours.)
The Legislature, motivated without doubt by its own concept of “unconscionable and unjust enrichment,” see Bangor Roofing v. Robbins et al., supra at page 148 of 151 Me.,
We cannot anticipate every factual situation that may arise but we conclude that under ordinary and usual circumstances the equities will not permit the supplier of labor and materials to obtain a personal judgment against the owner with whom he had no contractual dealings. Some of these equitable considerations have been adverted to in cases cited above. The prime contractor may already have been paid in full by the owner. The subcontractor may not have exhausted his remedies against the prime contractor. The subcontractor, with opportunity available to test the credit of the-prime contractor, has elected to give the latter credit. The owner may naturally assume that suppliers dealing with the prime contractor will look to the latter for payment. Defenses which may be available to the prime contractor as against the supplier may not be known or available to the owner. Any one or a combination of these equitable considerations, and perhaps others raised by the facts, will tend to prevent any “enrichment” from being “unjust” and will thus militate against a quasi contractual obligation.
So in the instant case, as noted above, Leach was employed by Pendleton and looked to Pendleton for payment. He has not as yet sought to obtain a judgment against Pendleton. Mrs. Sard was justly entitled to assume that Leach would look to Pendleton rather than to her for his reasonable compensation. Although she has not as yet paid to Pendleton the amount which may be justly owed to Leach, she should be able to do so with assurance that she will not thereby be subjected to double recovery. It follows that no contract is implied in law and judgment below in the matter of Leach v. Sard must be set aside.
Plaintiff Grinnell by his complaint seeks to impose a lien upon defendant’s property for labor and materials furnished in the course of the installation of plumbing facilities. The Court below accepted the report of the Referee and gave judgment for the lien.
The complaint to enforce a lien was filed in court on January 5, 1970. One who would preserve the statutory lien afforded by 10 M.R.S.A., Sec. 3251 must comply with the mandate of 10 M.R.S.A., Sec. 3255 which requires that the complaint be filed “within 90 days after the last of the labor or services are performed or labor, materials or services are so furnished, and not afterwards”. This would require in the instant case that such last item have been furnished not earlier than October 7, 1969. Electing not to follow the form of complaint found in Field, McKusick and Wroth, Maine Civil Practice, Vol. 1, Sec. 8.28, Page 213, the plaintiff filed a complaint which neither in the body thereof nor in the attached exhibits alleges the date when any item was furnished. The plaintiff has failed to allege or prove that any lienable item was furnished on or after October 7, 1969 as required.
In the very recent case of Bellegarde Custom Kitchens v. Arnold Leavitt et al. (Me. — 1972)
The entries will be
In Pendleton v. Sard
Appeal sustained. Judgment vacated. New trial ordered limited to single issue as to dollar amount of lien. 1
In Sard v. Pendleton (counterclaim)
Appeal denied. Judgment for Plaintiff Pendleton affirmed.
In Leach v. Sard
Appeal sustained. New trial ordered.
In Grinnell v. Sard
Appeal sustained. Judgment vacated. Complaint quashed. 2
All Justices concurring.
Notes
. It should be noted that an error appears in the form of judgment rendered in the Superior Court. We construe the Referee’s Report as awarding
judgment -in rem
as for a lien. Although the presiding Justice in the Superior Court “accepted” that report, he erroneously entered a
personal judgment
for plaintiff. Any new judgment which may be entered after further hearing should conform to the requirements of 10 M.R.S.A., Secs. 3259 and 3260. See Maxim v. Thibault (1924)
. In spite of the admonitions of this Court, the appellees, in designating certain additional portions of the record on appeal, included memoranda of law filed with the Superior Court. These memoranda have no place in the record and in taxing costs on appeal, the cost of including this material must be borne by the parties making the improper designation.