| Mass. | Oct 15, 1861
It is admitted that the petitioner, under and in fulfilment of an agreement between him and the respondent, performed labor and furnished materials which were used in erecting a barn and in altering and repairing a dwelling house upon the premises described in the petition. This entitles him to have a lien upon the buildings, and upon the interest of the respondent in the lot of land on which they are situated, if in all other respects his proceedings were correct. It is not essential that the agreement should have been in writing. The statute provides that the lien shall exist if the work is done or the materials are furnished either by virtue of any agreement with or consent of the owner. His consent to the application of labor and the supply- of materials in erecting and repairing the barn and dwelling house is a necessary implication from his agreement to pay for that work upon its completion a stipulated
But the respondent contends that the lien did not attach to the land and buildings for the amount or value of the materials furnished, because he was not the purchaser thereof, and was not notified by the petitioner before they were supplied of his intention to claim such lien therefor. But this position cannot be maintained. Within the meaning of the statute, upon a just construction of its provisions, he must be considered to have been the purchaser. He stipulated that they should be supplied, and he agreed to pay for them. They were therefore procured by him as the result of a bargain, and this constitutes a purchase. The statute provides that the lien shall arise for materials used in the erection or repair of buildings, if they are supplied by virtue of any agreement with, or by the consent of, any person having authority, or acting for the owner, to procure or furnish them in his behalf, as well as when they are furnished under his own agreement or consent. And the object of the proviso, under which the objection of the respondent is taken, is to provide that the owner shall have knowledge in advance of any supply of materials furnished upon the authority or with the consent of his agent, of an intention to create an incumbrance upon his estate, so that he may, if he chooses to do so, avoid or prevent it. But when he himself enters into an agreement that such materials shall be furnished, he can have no occasion for notice from the contractor of his intention to rely upon a lien for his security, since they are obtained by his own procurement, and the law expressly declares the consequences which shall result from their appropriation to the improvement and increase in value of his estate.
Nor has the lien created in favor of the petitioner upon the land and buildings, upon which he labored and furnished materials, been dissolved. Within thirty days after he ceased to labor and supply materials, he filed in the office of the clerk of the town of Southbridge, within which the premises are situated, a certificate, signed and sworn to by him, containing a statement of what he claimed to be a just and true account of
The suggestion that there was known and wilful error in the
As the lien has not been dissolved, the court are of opinion that this petition can be maintained ; and in pursuance of the agreement of the parties to that effect, a proper judgment for the enforcement of the lien to the amount of three hundred and fifty dollars is to be entered for the petitioner.