Reid v. Berry, 178 Mass. 260

Reid v. Berry

178 Mass. 260 | Mass. | 1901

Morton, J.

This is a petition to enforce a mechanic’s lien upon the premises described in the petition for digging, building and concreting a cellar, making sewer connections, and grading the lot, all for an entire sum. The case was defended by the Taunton Savings Bank as mortgagee. Certain issues, framed by it and agreed to by the petitioner, were submitted to the jury and found in favor of the petitioner. The substance of these findings was that the petitioner made the contract at the time alleged and performed it as required; that the labor and material were furnished by virtue of an agreement with or the consent of the owner of the building; and that, if there was any inaccuracy in the account, the plaintiff had not knowingly claimed more than was due. Exceptions were taken by the bank to the allowance of a motion by the petitioner for leave to amend the petition, and to the overruling of a motion made by it for leave to amend one of the issues. These exceptions have been waived. There was also an exception taken by the bank to the exclusion of a question by it to an expert as to what *262would be a fair price for digging, building and concreting the cellar and making the sewer connections and grading the lot. This exception has not been argued, though it has not been waived. The bank filed a motion that judgment should be entered for it, notwithstanding the findings of the jury upon the issues submitted to them.. The court overruled the motion, and ordered a lien to be established for the petitioner for the amount claimed. The bank excepted to these rulings and the principal question arises under them and is whether the petitioner is entitled to a lien for the grading; it being contended by the bank that the contract was entire and indivisible, and that if the lien is invalid in part it is invalid altogether.

It is to be noted that no issue appears to have been framed by the bank or to have been submitted to the jury in regard to the grading. From the issues that were submitted, no question would seem to have been raised before the trial in regard to the petitioner’s right to a lien for the grading. As the exceptions stand it is open to doubt whether the precise question was called to the attention of the court. There is nowhere in the exceptions a statement to that effect. But we think that if the grading was reasonably necessary to the proper construction and occupation of the house it fairly could be considered as a part of its erection and that the petitioner would have a lien for it. In Perry v. Potashinski, 169 Mass. 351, it was assumed that there was a lien for grading. In Beatty v. Parker, 141 Mass. 523, 526, it was held that a drain pipe from the house to a sewer in the street was a part of the house and that there was a lien for it. And in Hubbard v. Brown, 8 Allen, 590, 594, it would seem that a lien was established for steps leading into the garden. In the present case the question whether the petitioner was entitled to a lien for the grading was a mixed question of law and fact. It must be assumed that the court found as a fact that the grading was reasonably necessary to the proper construction and occupation of the house. And we cannot say as matter of law that upon the evidence reported the finding was wrong. See Yearsley v. Flanigen, 22 Penn. St. 489; Henry v. Plitt, 84 Mo. 237.

The question to the expert was rightly excluded. It had nothing to do with any question before the court.

Hxceptions overruled.