Opinion
No. 4038.
Decided June 5, 1951.
The waiver by counsel in open court of defects in a writ to secure a mechanic's lien under R.L., c. 264, s. 12, is within the scope of an attorney's authority and is binding upon his client. The finding of the Trial Court was warranted under all the circumstances that a garage erected upon the land of another with the latter's consent remained the property of the party who erected it and that such garage was subject to a mechanic's lien for labor and materials expended by a third party in installing a heating plant therein.
ASSUMPSIT, for labor and materials furnished in connection with the installation of a heating plant in a garage building, and to establish a mechanic's lien on the building. Arthur O. Dubuque, a mortgagee, intervened.
Trial by the Court, who returned a verdict for the plaintiff ruling that he had a mechanic's lien on the building described in the writ and that the lien was prior to the mortgages of the intervenor.
At the close of the plaintiff's case a motion was denied, subject to exception, that he be nonsuited on the ground that the evidence was insufficient to establish that the defendant was the owner of the land and buildings described in the writ. The intervenor, Dubuque, moved to set aside the verdict, for a new trial based upon newly discovered evidence and to arrest judgment. To the denial of these motions he excepted. The defendant O'Connor excepted to the denial of his motion to remove his default.
O'Connor had previously rented from Dubuque a garage on the same premises, which burned in July, 1948. Shortly thereafter he borrowed money from a bank with Dubuque as surety and constructed a new garage on Dubuque's land. O'Connor received a deed of the land and garage on November 9, 1948, and gave back to Dubuque two mortgages, dated November 1 and November 9, 1948, respectively. An attachment for the purpose of enforcing the alleged lien was made December 13, 1948. The last work on the heating plant and compressor which was sold to the defendant in September, 1948, was done on October 27, 1948. Other facts appear in the opinion. All questions of law raised by these exceptions were reserved and transferred by Grimes, J.
Robert A. Jones (by brief and orally), for the plaintiff.
John W. O'Connor, pro se.
Fred P. Carr for the intervenor.
Counsel for the intervenor Dubuque in open court waived any defect in the writ by which the mechanic's lien under Revised Laws, chapter 264, section 12, was allegedly secured. This action was within the scope of the attorney's authority (Barry v. Bartis, 85 N.H. 202) and under our decisions it binds Dubuque. Burrman v. Butman, 94 N.H. 412. The question before us, therefore, is whether the defendant O'Connor had such an interest in the garage building that the lien could attach. We believe that he did and it follows that the lien thus secured takes precedence over Dubuque's mortgages. Caron v. Association, 90 N.H. 560.
It is undisputed that the defendant borrowed the money to build the garage and that it was erected on Dubuque's land with his assent. The defendant used his own lumber, took complete charge of the construction, named it "Jack's Garage" and planned to run it, as Dubuque "didn't want to be in the business anyway." Evidence was introduced without objection that O'Connor told a witness while it was being built, "Mr. Dubuque has nothing to do with it, the garage belongs to me." It also appears that the mortgages contained provisions that the heating plant and compressor which were installed in the garage were subject to any prior liens in the seller. Under these circumstances the Court was not only warranted in finding an implied agreement that the building remain O'Connor's property (36 C.J.S. 921, 922) but it may fairly be said that such an understanding was "almost necessarily implied." See Dame v. Dame, 38 N.H. 429, 433. Again, the Court could reasonably find here that the equitable rights of O'Connor were not extinguished by the mere fact that the garage was built on Dubuque's land, and upon this finding rule that the lien attached to these rights. Cf. Marston v. Stickney, 60 N.H. 112. In either event, the lien on the building was valid and the exceptions of the defendant O'Connor and the intervenor Dubuque relative thereto must be overruled. There being no others of merit, the order is
Judgment on the verdict.
All concurred.