Bowen v. Phinney

39 N.E. 283, 162 Mass. 593, 1895 Mass. LEXIS 345

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1895
• Status: Published

Opinion

Holmes, J.

Our statute gives an immediate lien to one who has performed labor in the repair of a building by the consent of its owner. Pub. Sts. c. 191, § 1. Even if he is employed by a contractor, the laborer’s lien is not by way of subrogation, and does not depend upon the terms of the contract or the state of the account between his employer and the owner of the land. See Parker v. Bell, 7 Gray, 429. Atwood v. Williams, 40 Maine, 409. Laird v. Moonan, 32 Minn. 358, 361. Shenandoah Valley Railroad v. Miller, 80 Va. 821, 831. Mallory v. La Crosse Abattoir Co. 80 Wis. 170. Wright v. Pohls, 83 Wis. 560, 563. 2 Jones, Liens, (2d ed.) § 1304. There are statutes of a different type in other States, but the books cited are enough to show that ours is a familiar form of legislation. The provision in § 2 has nothing to do with the ease. By that section, when the agreement is for labor and materials, a lien is allowed for the labor for a sum not greater than the price for the entire contract. The contract referred to there, as also in Moore v. Erickson, 158 Mass. 71, 73, is the contract of the party claiming the lien, not a superior contract, and the purpose of the section merely is to save a lien for labor when the party has none for materials. We have no statute limiting the liability of the owner to the price stipulated in the contract with him, as in Wright v. Pohls, 83 Wis. 560, Morehouse v. Moulding, 74 Ill. 322, and the like. It follows that the facts offered to be proved would not be a defence. Exceptions overruled.