103 Me. 67 | Me. | 1907
This is a bill in equity to enforce the plaintiff’s lien claim upon the Auditorium Building in Bangor and the leasehold interest in the land upon which it stands, owned by the Eastern Maine Musical Association, for materials furnished and labor performed by the plaintiffs in relaying a part of the floor during the occupancy of the defendant Mathis, who held under a written lease from the Musical Association for the term of ten months beginning May 20, 1905, for a rental of $1500. This
The following provisions are found in chapter ninety-three of the Revised Statutes relating to mechanics’ liens.
Section 29. "Whoever performs labor or furnishes labor or materials in erecting, altering, moving or repairing a house, building or appurtenances, or in constructing, altering or repairing a wharf, or pier, or any building thereon, by virtue of a contract with or by consent of the owner, has a lien thereon, and on the land on which it stands and on any interest such owner has in the same, to secure payment thereof, with costs.”
Section 30. "If the labor or materials were not furnished by a contract with the owner of the property affected, the owner may prevent such lien for labor or materials not then performed or furnished by giving written notice to the person performing or furnishing the same, that he will not'be responsible therefor.”
Section 31, as amended by Public Laws, 1905, chapter 110. "The lien mentioned in the preceding section shall be dissolved unless the claimant within sixty days after he ceases to labor or furnish materials as aforesaid, files in the office of the clerk of the town in which such building, wharf or pier is situated, a true statement of the amount due him, with all just credits given, together with a description of the property intended to be covered by the lien, sufficiently accurate to identify it, and the names of the owners, if known; which shall be subscribed and sworn to by the person claiming the lien, or by some one in his behalf, and recorded in a book kept for that purpose.”
Section 33 provides that such liens may be preserved and enforced by bill in equity against the debtor and owner of the property affected, filed within ninety days after the last of the labor is performed or labor or materials are so furnished. Section 36 reads as follows: " The court shall determine the amount for which each lienor has a lien upon the property, by jury trial, if either party so requests in bill, petition or answer; otherwise in such manner as the court shall direct. And such determination shall be conclusive
In this proceeding, it appears that the plaintiffs contracted with the defendant Mathis to furnish the labor and materials necessary to relay a section of the floor of the Auditorium for the sum of $500, and it is not in controversy that the plaintiffs performed the contract on their part and became entitled to recover the contract price of $500. It is also unquestioned that the plaintiffs fully complied with the statutory provisions above quoted respecting the procedure for the enforcement of the lien. The plaintiffs do not claim, however, that the work, was done by virtue of a contract with the owner of the building, but they insist that they have complied with the alternative requirement of the statute by proving that it was done by consent of the Musical Association, the owner of the Auditorium and of a leasehold interest in the land on which it stands. This is denied by the defendant, and thus at the trial the only issue between the parties was whether the improvement in question was made by "consent” of the owner of the property in the sense in which that term is employed in the statute. At the request of the plaintiffs this issue was submitted to the jury in accordance with the provisions of the statute above quoted, authorizing the court to determine by jury trial “the amount for which each lienor has a lien on the property.” In their bill the plaintiffs claimed a lien for the contract price of $500, and the jury found that the plaintiffs had a lien upon the property described in the bill "as alleged by them.” Thereupon, in consideration of this advisory verdict, and of the evidence upon which it was based, the presiding Justice entered a decree that the plaintiffs recover against the defendant Mathis, as to whom the bill was taken pro confesso, the sum of $500 with interest and costs, and have a lien therefor on the property described in the bill owned by the Eastern Maine Musical Association.
The question now presented for the determination of the Law Court is whether this decision of the presiding Justice upon the matters of fact involved in the question of the owner’s consent to the repairs made by the plaintiffs at the request of the tenant, is shown
In Shaw v. Young, 87 Maine, 271, the question of the proper significance and force to be given to the word "consent” in this statute was critically considered by the court in the light of the history of our legislation upon this subject in recent years. It was provided by the Statute of 1868 that such consent should not be inferred unless notice was first given to the owner that a lien would be claimed; but this requirement of notice was stricken out by the Act of 1876, and the provision for a written notice of dissent by the owner retained. Since that time the "consent” copld be inferred without any notice to the owner. In the opinion the court say: "We think this change in the statute materially modifies the meaning of the word "consent” in favor of the lien claimant. It seems to be assumed by the legislature that the owner of real estate will be vigilant in caring for it either in person, or by agents; — that if he leaves it in the possession of agents, or tenants, knowing that repairs are necessary to be made from time to time, and makes no provision for them, but leaves them to be made by agents or tenants, and gives no notice of dissent, his consent may be inferred so far as the lien claimants are concerned.
We are satisfied from the facts in this case that the statute consent of the owners sufficiently appears.
This decision, however, should not be extended beyond the facts in this, particular case. Consent may be inferred for ordinary preservative repairs, when it would not be inferred for alterations, remodelings, additions, or even more extensive repairs. The consent must be shown, and whether it appears in any given case will depend wholly upon the facts in that case.”
In that case the repairs in question were found to be " necessary for the preservation of the building and necessary to keep up its earning powers as a hotel and keep it up to the essential modern conditions.”
In Huntley v. Holt, the court thus define the term "consent” as used in the Connecticut statute : " When the statute uses the word, ‘ by the consent of the owner of the land, it means that the person rendering the service or furnishing the materials and the owner of the land on which the building stands'must be of one mind in respect to it. The words c consent of the owner, ’ are used in the statute as something different from an agreement with the owner; and while it may be urged that they do not require such a meeting of the minds of the parties as would be essential to the making of a contract, there must be enough of a meeting of their minds to make it fairly apparent that they intended the same thing in the same sense.”
But after the analogy of implied contracts or agreements inferred from the conduct of parties and the circumstances of the case, if one furnishes labor and materials for making permanent repairs on a building, in the belief that the owner has given his consent thereto and in the expectation that he will have a lien therefor on the building and the conduct of the owner, viewed in the light of all the circumstances, justified such expectation and belief, the basis of a lien is thereby established as effectually as by a mutual under
If the owner of a building induces another to furnish labor and materials for such permanent improvements upon his property, by conduct and declarations which create the appearance of an unqualified consent thereto on his part, the owner is estopped to deny the existence of such consent in reality, for the reason that he has so conducted himself that it would be contrary to equity and good conscience for him to assert rights which might perhaps, have otherwise existed, as against another who has in good faith relied upon such conduct and been thereby induced to act to his detriment. And under such circumstances it would not be necessary that the original conduct creating the estoppel should be characterized by an actual intention to mislead and deceive. Martin v. Maine Central R. R. Co., 83 Maine, 100 ; Rogers v. Portland & Brunswick St. Ry., 100 Maine, 86.
In the case at bar it has been seen that the owner of the building in question is the Eastern Maine Musical Association, and the records fail to disclose any vote of that corporation or of its board of directors, expressly authorizing any officer or agent of the Association to give its consent to the repairs in controversy. Nor is there any direct evidence that any officer or agent of the Association ever expressly consented to such repairs. But it is claimed by the plaintiffs that F. O. Beal, the president of the board of directors was in fact entrusted by his associates with the entire management and control of the Auditorium and of the affairs of the Association, and that he was held out to the plaintiffs as one clothed with full authority to represent the Association; and they further contend that his conduct in the premises, considered with reference to the situation of the parties the use to which the building was to be devoted by the defendant Mathis, the condition of the floor of the building, and all the circumstances warranted the inference that he had given an unqualified consent to the repairs as a permanent improvement to the building.
The work in question was done by the plaintiffs between the 5th and the 11th of September 1905, and it does not appear that any
October 31, 1905, Mathis having failed to meet his monthly payments of rent, Mr. Beal employed an attorney to commence a suit in the name of the Association to collect the amount due and after coming into the attorney’s office prepared a statement of the account to be annexed to the writ, containing a credit of $450 cash, "an allowance on floor of $150” and "allowance for fair and festival $92.” By virtue of this writ eight boxes of roller skates were attached in Bangor as the property of the defendant Mathis.
. After Mathis surrendered possession of the building, Mr. Beal employed the same attorney to make a lease of it to another tenant who also occupied it as a skating rink during the year following. At the trial of this cause Mr. Beal was present in the court room but did not testify as a witness.
At a meeting of the directors held January 24, 1906, a vote was passed authorizing the president, Mr. Beal, to execute a bond in the sum of $400, in behalf of the Association, to indemnify the deputy sheriff for making the attachment on the writ above described in favor of the Association and against Mathis.
A corporation must act and speak through its officers and author
It has been seen that though present in court at the trial, Mr. Beal did not appear as a witness to disclaim the authority ascribed to him as the active agent of the Association, and when all of the evidence relating to that branch of the case is examined in the light of the familiar principles of law above stated, it cannot be 'said that there was manifest error on the part of the jury and the presiding Justice in drawing the inference that Mr. Beal had acquired the authority to "bind the corporation by the habit of acting with the assent and acquiescence” of the board of directors.
It is also the opinion of the court that it cannot reasonably be deemed "clearly erroneous” to hold that the labor and materials were furnished by the plaintiffs "by consent of the owner” given through Mr. Beal, its authorized agent, within the meaning of the statute.
The owner of the Auditorium leased it to the defendant Mathis to be used as a skating rink At the large rental of $150 per month,
Again an inspection of the account for rent on which suit was brought by Mr. Beal for the Association October 31, 1905, shows that all of the cash payments made by Mathis aggregated $450, being the amount of the rent for three months ending August 20. It was not an unreasonable inference from this fact that after the contract for the new floor was made with the plaintiff, Mathis ceased to pay rent by reason of an understanding with Mr. Beal at
Furthermore Mr. Beal was present at the trial, heard all of the plaintiffs’ evidence and the contention of counsel based upon it, but declined to testify as a witness in behalf of the defendant Association. All the facts relating to the controverted question of .the owner’s consent to the repairs were peculiarly within his knowledge and he could have supplied positive evidence of what must otherwise be left to inference. The object of the trial was to discover and declare the truth in relation to that question, and he had an opportunity to render aid of vital importance in the promotion of that object. As observed by this court in Union Bank v. Stone, 50 Maine, 599, "The defendant does not offer his own testimony. He prefers the adverse inferences which he cannot but perceive may be drawn therefrom to any statements he could truly give, or to any explanations he might make. He prefers any inference to giv
The plaintiffs had no information respecting the precise nature of the arrangement between the lessor and lessee in regard to these repairs, and if Mr. Beal consented to the improvement or by his conduct and declaration interpreted in the light of all the circumstances, justified the plaintiffs in.believing that he had consented and they furnished the labor and materials in good faith in that belief, it is immaterial by what private agreement between Mathis and himself Beal was induced to give his consent or so to conduct himself as to indicate consent.
It is accordingly the opinion of the court that the entry must be
Appeal dismissed.
Decree below affirmed, with additional costs.