Graham & Sons, Inc. v. B. R. Realty Co.

4 R.I. Dec. 23

• Court: Superior Court of Rhode Island
• Decided: October 8, 1927
• Docket: Eq. No. 7742
• Status: Published

Opinion

BAKER, J.

Petition for mechanic’s lien.

This matter was heard with Equity No. 7840 in which a rescript has been filed denying the petition. The same general facts and testimony apply to both cases and for this reason it seems to the Court that the petition in the ease at bar should also 'be denied as it is governed by the same principles set out in the rescript in said No. 7840.

For petitioner: Walter I. Sundlun, Baker & Spicer. For respondent: Philip C. Joslin and A. L. Churchill.

In the present case, however, there are two additional matters worthy of note.

The account contains only one date, namely, October 8, 1925. Under this is included in detail the material furnished and at the end of said account is a lump charge for labor amounting to $670.35, followed by a charge of cartage at $8. In the judgment of the Court, the latter charge can not properly be allowed in a mechanic’s lien proceeding.

In regard to the labor charge, it is quite clear from the testimony that this covers a period of approximately a month, although it would not appear so from the account. Under these circumstances it seems to the Court that the law has been well settled that such an account is improper and insufficient.

McPherson vs. Greenwall, 27 R. I. 178.

The Court is of the opinion, therefore, that in any event the item for labor should not 'be allowed.

Further, if it should be assumed that all the labor is properly chargeable to October 8, 1925, then it would seem that the notice was served more than forty days thereafter, to wit, on November 18, 1925.

For these additional reasons it would appear that at least the labor charges in said account, and possibly the whole account, were defective.

At the hearing of the case a motion was made to strike out the account, which motion was held pending final decision. In view of said decision it is unnecessary to pass further upon said motion.

The petition for a | lien is denied and dismissed.