227 Mass. 446 | Mass. | 1917
These are two petitions to establish mechanics’ liens for labor and material furnished under written contracts with the defendant, Charles Kolodny, in installing two electric elevators, one in a building on Huntington Avenue, Boston, the other in an adjoining building on Hemenway Street, Boston. At the trial it was agreed that there was owing the petitioner the sum of $400 on the Huntington Avenue contract and the sum of $2,40.0 on the Hemenway Street contract.
On October 30, 1913, $2,000 of this amount was paid by the defendant in cash and running notes which were afterwards paid. The balance, $400 of a $500 note, was ultimately represented by a renewal note dated February 16,1914, payable on April 17,1914. This last note is now unpaid and at the trial was tendered by the petitioner to the defendant. The elevator in the building was turned over for operation to the defendant on November 18, 1913, and on that date was approved by the building inspector. Although the petitioner performed or furnished the labor for adjusting, repairing and testing work on this elevator and charged the defendant for it on six occasions between December 16, 1913, and September 10, 1914, there is no evidence that any work under the contract was done between November 18, 1913, and January 26, 1915- -On the last named day two men under the direction of the petitioner did work to the value of $4.90, which work is asserted to have been uncompleted work under the terms of the contract.
The contract relating to the elevator to be installed in the building on Hemenway Street was dated November 7, 1913. The price was $2,400 and no part has been paid. This elevator was turned over for operation to the defendant in June 1914. On January 26, 1915, the petitioner in alleged performance of the terms of the contract caused work to be done upon this elevator to the value of $6.80. No other work had been done under the contract between June, 1914, and January 26,1915, except on July 15,1914, and on September 30,1914.
Within thirty days after January 26, 1915, certificates claiming liens were filed in the registry of deeds in Suffolk County and thereafter within ninety days, on March 25, 1915, petitions to enforce the liens were duly filed.
On February 18, 1916, in the Superior Court, the respondents in both petitions moved to dismiss the proceedings "for want of jurisdiction in this court to- proceed further therewith owing to St. 1915, c. 292,” which statute was approved May 28,1915, and took effect January 1, 1916. The motion was denied rightly. In this Commonwealth a mechanic’s lien is not created upon the filing of a certificate and a petition but is created as soon as labor or
On the evidence it is the contention of the respondents that the acceptance of the money and notes on October 30, 1913, in connection with the receipt of the petitioner which reads in part “ same to be final payment on contract . . .,” is conclusive proof that the plaintiff received the notes as payment and thereby waived any claim of lien under the contract. It is plain that it could not be ruled as a matter of law that the notes were taken as a payment or that it was the intent of the plaintiff to .waive and surrender the security of the lien. McLean v. Wiley, 176 Mass. 233, 235. Cary Brick Co. v. Wheeler, 210 Mass. 338. Baldwin v. Porter, 217 Mass. 15, 17. McKinley v. Warren, 218 Mass. 310, 313.
It is the final contention of the respondents that the labor and materials furnished on January 26, 1915, were not furnished in fulfilment of the contracts or in good faith. The evidence discloses that no work under the contract was done on the Huntington Avenue building for nearly sixteen months and none under the contract on the Hemenway Street building for nearly nine months after the elevators were turned over for operation to the respondents. It also appears that the work actually done on these elevators on January 26,1915, was of comparatively slight money
It is impossible to say as matter of law that there was no evidence to support the contention of the petitioner that he acted in good faith in sending the men to examine the elevators, to supply any deficiencies and to remedy any defaults, the absence or condition of which prevented the full completion of his contract to furnish and erect the elevators in a substantial and workmanlike manner.
It follows that the judge rightly denied the respondents’ motion to dismiss, and properly submitted the issue “Did the petitioner within thirty days of ceasing to perform and furnish labor and furnish materials under the contract file a claim of lien in the Registry of Deeds, as required by law? ”
It results in accordance with the terms of the report that “the order of the court establishing the liens shall stand.”
So ordered.
