109 Me. 342 | Me. | 1912
This bill in equity was brought to enforce a mechanic’s lien under the provisions of R. S., ch. 93, sect. 29, et sequitur. The plaintiff, a contractor, furnished labor and materials in erecting a building under a contract with the Maine Supply and Garage Company, made and dated October 20, 1910. The Androscoggin County Savings Bank, on January 4, 1911, took from the Supply and Garage Company a mortgage of the building and the land on which it stood, to secure a loan of $15,000. The money was loaned for the purpose of paying for construction work and materials in and upon the building. The entire amount of the loan was not advanced at the date of the mortgage. Some of it was advanced then, and more was advanced later from time to time upon the architect’s certificates, showing the progress of construction. The case comes before us as on the appeal of the defendant bank from a decree by a single justice. The decree established the plaintiff’s lien for $4,354.31, and adjudged that it was entitled to priority in payment over the mortgage right of the bank.
Under principles well settled in this State and elsewhere, a mechanic’s lien for labor and materials furnished under a contract takes precedence over a mortgage given subsequently to tbe making of the contract, though the labor and materials, or some of them, may not be actually furnished until after the mortgage is given. Morse v. Dole, 73 Maine, 351; Farnham v. Richardson, 91 Maine, 559; Central Trust Co. v. Bodwell Water Power Co., 181 Fed. Rep., 735; 27 Cyc., 234. This doctrine, if nothing else appeared, would sustain the decree.
But the defendant bank contends that under the circumstances of this case, the decree is erroneous upon two grounds, namely, that as against the bank the plaintiff is equitably estopped from claiming a lien, and, that he has waived the right to a lien.
'Whether, if this were all there was to the case, the doctrine of equitable estoppel would apply, we do not need to inquire. There are other facts. And we think there are several answers to the bank’s contention, upon the facts, gathered from the testimony of the officers of the bank themselves.
In the first place, inasmuch as the bank officers, or some of them, testified that the application for the loan was made, some said, “the fore part of October,” and some “about the middle of October,” and the contract for the building was not made until October 20, it was open to the Justice who heard the case, whose findings of fact are conclusive, unless clearly wrong, Young v. Witham, 75 Maine, 536; Proctor v. Rand, 94 Maine, 313, to find that no contract existed at the time of the application for the loan, and therefore the plaintiff had none to disclose. But passing this point, as perhaps of minor importance, we come to another.
In any event, the loan- was applied for in October. It was not voted by the bank trustees until November 7. It was then found by the bank that the title to the land was not in the Supply and Garage Company, being, in fact, held by several individuals for the cor
Intimately coasMed mtli the daim oí estoppel, perhaps so intimately as not to make it easily distinguishable, is the claim of a waiver of lien. This is based upon the contention that at the time the loan was applied for the plaintiff in effect agreed that, with the aid of the $15,000 loan, the building could and should be completed free of mechanic’s liens, so that the mortgage should be an underlying security; or if the words and conduct of the plaintiff did not constitute an agreement, the plaintiff did so represent and hold out to the bank that the building would be so completed that he ought now to be bound by its statements, and be held to have waived any lien. We do not think that the evidence sustains the claim.
We are of opinion, therefore, that the decree below should be affirmed.
Appeal denied. Decree below affirmed, with additional costs.