Orr v. Fuller

52 N.E. 1091, 172 Mass. 597, 1899 Mass. LEXIS 857

• Court: Massachusetts Supreme Judicial Court
• Decided: March 2, 1899
• Status: Published

Opinion

Holmes, J.

The facts that the work was done and the materials were furnished under one contract with the owner of the whole tract, coupled with the absence of any visible divisions, warranted a finding, if not a ruling, that the whole tract was one lot, and that there was a lien upon the whole of it for the whole sum due, under Pub. Sts. c. 191, § 1. Batchelder v. Rand., 117 Mass. 176. See also Lincoln v. Commonwealth, 164 ; Wellington v. Boston Maine Railroad, 164 Mass. 380, 381.

The contract was broken by the owner of the land, and the jury on that ground were allowed to find the fair value of the work and materials, even though it should exceed the contract price less the work not done, as they found that it did. We are of opinion that this was contrary to Pub. Sts. c. 191, § 23, which gives the plaintiff in a case like this “ reasonable compensation for as much as he has performed, in proportion to the price stipulated for the whole.” Hale v. Johnson, 6 Kans. 137. The question is not what personal remedy he might have against the other party to the contract, "but to what extent it is proper to charge the land with a lien when it may have gone into the hands of strangers. Of course it would be possible to say that buyers must take notice of all possible consequences of the contract, but it seems more reasonable to fix the limit and the proportion from the only measure of which they can have notice, — the contract price. For that reason, no doubt, the statute has established a general rule.

The result is, that the exceptions must be sustained, but the petitioner may be able to avoid a new trial by consenting to a reduction.

Exceptions sustained.