Street Lumber Co. v. Sullivan

87 N.E. 905, 201 Mass. 484, 1909 Mass. LEXIS 769

• Court: Massachusetts Supreme Judicial Court
• Decided: March 29, 1909
• Status: Published

Opinion

Braley, J.

The respondent not having been the purchaser, the petitioner has no lien for the lumber furnished unless it gave the notice required by R. L. c. 197, § 3, which provides that “ the lien shall not attach for materials unless the person who furnishes them, before so doing, gives notice in writing to the owner of the property to be affected by the lien, if such owner is not the purchaser of such materials, that he intends to claim such lien.” In Whitford v. Newell, 2 Allen, 424, 426, where the effect of this requirement found in earlier legislation, which by re-enactment is still the law, was considered, it was held to have been the legislative purpose that the owner should have actual knowledge in advance of an intention to charge his estate with an incumbrance for materials which were to be furnished wholly upon the authority or with the consent of the contractor. St. 1855, c. 431, § 1. Gen. Sts. c. 150, § 2. St. 1872, c. 318, § 3. Pub. Sts. c. 191, § 3. R. L. c. 197, § 3.

The petitioner does not contend “that the respondent as the owner of the premises was personally notified, but the. notice was addressed and delivered to her husband, who is found to have acted as her agent in contracting for the erection of the building with the exception of the brick work, and by whom its construction was supervised. The notice, moreover, does not purport to be directed to the respondent, as the petitioner believed that the title was in her husband, whom it intended to hold responsible as the owner of the land, but it later discovered that he was acting only as agent. It is no doubt settled in the law of agency as the petitioner contends, that notice to an agent of an undisclosed principal, where he is acting within the scope of his agency, is constructive notice to the principal, who must be charged with the agent’s knowledge. A lien for materials, however, having been conferred solely by statute, does not come into existence unless the statutory conditions are strictly followed. Trask v. Searle, 121 Mass. 229. General Fire Extinguisher Co. v. Chaplin, 183 Mass. 375, 378. Shelton v. Sears, 187 Mass. 455. In some jurisdictions it is provided, that for this purpose notice either to an owner or to his agent is sufficient. Wickham Bros. v. Monroe, 89 Iowa, 666. Smith-Anthony Stove Co. v. Spear, 65 Mo. App. 87. Leav Lumber Co. v. Auer, 123 Wis. 178. Jarden v. Pumphrey, 36 Md. 361. Or such service is authorized where the owner is absent from the county. Wiltsie v. Harvey, 114 Mich. 131. But if the Legislature had intended that constructive as well as personal notice would perfect the right, our statute would have so provided. In the absence of such provisions the notice must be served upon or received by the owner himself, or there is a failure to comply with the statutory requirements, and, there having been no foundation for the petitioner’s lien, it never attached. Blanchard v. Ely, 179 Mass. 586. Fletcher v. Stedman, 159 Mass. 124. Pou v. Covington & Macon Railroad, 84 Ga. 311.

The petition, therefore, cannot be maintained, and the rulings requested should have been given.

Exceptions sustained.