Wiley v. Connelly, 179 Mass. 360

179 Mass. 360 | Mass. | 1901

Mobton, J.

This is an action for money had and received. The case was heard by the court without a jury on an agreed statement of facts which gave the court power to draw inferences of fact. There was a finding for the plaintiff, and the case is here on the defendant’s exceptions to the refusal of the court to give certain rulings that were asked for and to the rulings that were given.

The plaintiff claims under an assignment executed and delivered to him November 14, 1898, by one McKenna of all the claims and demands which he had against one Yates. It is agreed that on that day McKenna had a valid claim of mechanic’s lien on the real estate of Yates. On November 16 McKenna duly filed in the registry of deeds a statement of said lien. The defendant claims under an assignment made to him on November 16 by said McKenna for the benefit of his creditors. On December 16 Yates paid to the defendant as assignee the amount of the lien. The judge found that the payment was made in good faith by Yates and in ignorance of the assignment to the defendant and found or ruled that it discharged the lien. The defendant who is an attorney at law drew and filed the statement of lien for McKenna, and was told by McKenna before accepting the payment from Yates that he had made the assignment to the plaintiff. But the defendant had never seen the instrument before the money was paid and did not know its exact contents. The statement of lien, a copy of which was annexed to the agreed statement of facts, set out in substance that McKenna furnished labor on a building belonging to Yates by virtue of an agreement made by him with the consent of Yates with a firm by the name of McNulty and Hoag. The judge found that the assignment from McKenna to the plaintiff operated to assign the debt due McKenna from McNulty and Hoag and carried with it a right to maintain an action in the name of McKenna to enforce the lien against the real estate of Yates. The judge also found that by reason of his knowledge of the prior assignment to the plaintiff, and by reason' of the fact that he was assignee solely for the benefit of creditors, the defendant received the money that was paid him by Yates in trust for the benefit of the plaintiff and ruled that the plaintiff could maintain an action for money had and received to recover it.

So far as the above rulings and findings relate to matters of fact they are not open to revision here. So far as they relate to matters of law we see no error in them. The assignment from McKenna to the plaintiff manifestly transferred to the plaintiff what was due McKenna from McNulty and Hoag and the right to enforce the lien in McKenna’s name passed with the debt. The objection that there was no lien and that it could not be transferred is not well taken. The lien was created as soon as the labor was performed or furnished. Clifton v. Foster, 103 Mass. 233. The filing of the certificate was not necessary in order to create the lien. It simply kept the lien alive and prevented its dissolution so that proceedings could be taken to enforce it. Clifton v. Foster, ubi supra. We see nothing in the nature of a mechanic’s lien which renders it unassignable, and there is nothing in the statutes creating such liens which forbids the assignment of them. The lien is intended as a security for those performing or furnishing labor or material or both, on real estate, and we see no reason why it should not pass with an assignment of the debt which it secures. See Moore v. Dugan, ante, 153; Williams v. Weinbaum, 178 Mass. 238; Davis v. Bilsland, 18 Wall. 659 ; Murphy v. Adams, 71 Maine, 113; Phillips v. Vose, 81 Maine, 134; Chicago & Northeastern Railroad v. Sturgis, 44 Mich. 538; Midland Railway v. Wilcox, 122 Ind. 84; Hallahan v. Herbert, 57 N. Y. 409; Lawrenee v. Congregational Church of Greenfield, 164 N. Y. 115. It differs, we think, from a factor’s lien or the lien which a mechanic has at common law on a chattel for work and materials, and from other liens at common law on chattels. The latter kind, of lien is as stated by Shaw, C. J., in Doane v. Russell, 3 Gray, 382, 384, a “ personal right to detain ” and not an interest in the property as a mechanic’s lien under the statute is. For a collection of cases regarding the assignability of mechanics’ liens, see 15 Am. & Eng. Eneyc. of Law, (1st ed.) 102. If it is possible that the plaintiff might have availed himself of the mechanic’s lien if he had so elected, which we do not intimate, he has not done so, and, under the circumstances, we think that the ruling by the court, that the payment by Yates to the defendant discharged the lien, was correct. The defendant received the money with notice of a prior assignment of the claim to the plaintiff, and we think that under St. 1897, c. 402, the plaintiff can maintain an action therefor in his own name. The fact that the defendant may have received it as assignee for the creditors cannot defeat the plaintiff’s prior right. The money belongs to the plaintiff ex cequo et bona, and can be recovered in this form of action. Goreley v. Butler, 147 Mass. 8. Hall v. Marston, 17 Mass. 575. Mason v. Waite, 17 Mass. 560.

Exceptions overruled.