Boston Furnace Co. v. Dimock

33 N.E. 647, 158 Mass. 552, 1893 Mass. LEXIS 341

Opinion

Holmes, J.

In the opinion of a majority of the court, there was no evidence that the portable ranges for which the lien is claimed “were to be furnished as parts of the several houses in which they were put,” or were “ applied so as to constitute parts of the buildings,” within the meaning of Turner v. Wentworth, 119 Mass. 459, 465. See Dimmick v. Cook, 115 Penn. St. 573; Schaper v. Bibb, 71 Md. 145. In the opinion of Mr. Justice Knowlton and of Mr. Justice Lathrop there was evidence, and the case should have been sent to a jury. I concur in that opinion, if the question what would pass as between vendor and purchaser be the test of what are “ materials . . . used in the erection ... of a building.” Pub. Sts. c. 191, § 1. Mr. Justice Barker and myself, however, are disposed to think that the words of the act are to be taken in a less artificial sense, and that the true test is structural connection with the building, which would lead us to the same result as the majority.

Exceptions overruled.