Opinion
No. 4168.
Decided March 3, 1953.
In an action to enforce a mechanic's lien there was no abuse of discretion in permitting other claimants to enter appearances as intervenors after the decree had been entered. One who furnishes materials for the construction of another's building may secure a valid mechanic's lien thereon although the contract between the parties is an implied one. Where the lien claimant under an implied contract with the owner's contractor supplied materials as ordered at intervals of less than ninety days over a long period of time on an open account for the sole purpose of erecting the building upon which the lien is claimed the finding was warranted that the contract was an entire or continuing one.
BILL IN EQUITY, to enforce a mechanic's lien on a certain building known as the Hobbs Building. It appeared that the Leon Keyser, Inc. corporation was constructing a store building under a contract with the Joseph O. Hobbs Trust. The Keyser corporation became financially involved and a receiver was appointed. Several writs, among them one by the plaintiff, the Diamond Match Co., were brought to enforce mechanic's liens against the Hobbs Building. The Superior Court found that the plaintiff match company was entitled to a lien in the sum of $2,532.56 which took precedence over other unsecured claims. Some other claims were by lien creditors and others by general creditors, the total amount exceeding the funds which will be available for payment. Following the Court's ruling allowing the lien of the Diamond Match Co., two other claimants, State Electric Co., Inc. and John H. Stevens Co., Inc., filed a petition to intervene and appeal, alleging financial interest as a potential lien claimant and a general creditor, respectively. The Stevens company now disclaims any interest in these proceedings, but the petition of both concerned was granted, subject to the plaintiff's exception, and their appeal from the decree establishing the match company as a lien holder, together with the company's appeal from the Court's allowance of their petition, were transferred by Goodnow, C. J. Other facts appear in the opinion.
Hughes Burns and Robert E. Hinchey (Mr. Hinchey orally), for the plaintiff.
Devine Millimet (Mr. Millimet orally), for State Electric Co., Inc. and John H. Stevens Co., Inc.
Joseph O. Hobbs Trust defaulted.
The record shows no abuse of discretion in permitting the defendant intervenors to enter an appearance after a decree was entered. Riddle v. George, 58 N.H. 158; Hatch v. Rideout, 95 N.H. 431, and cases cited. It follows that the question whether there was a contract sufficient to support the plaintiff's lien is properly before us. The Court found on undisputed evidence that the plaintiff furnished a substantial amount of materials, purchased by Keyser, Inc. for the defendant Hobbs Trust, for the construction of their building, during the months of January, February, March and through and including April 11, 1951. Clearly the further finding that an implied contract existed between these parties was warranted. Dufton v. Bank, 95 N.H. 299, and authorities cited. There is nothing in our statute (R. L., c. 264, s. 12) to suggest that a contract need be in writing or that any special formalities are required in order for one to become entitled to a mechanic's lien, and there is no occasion to read such a meaning into the law. The only remaining question, therefore, is whether the Court's holding that the contract was an entire or continuing one is erroneous. As bearing on this, it seems that among other factors it is undisputed that all this material was furnished for the sole purpose of erecting the Hobbs Building and that the numerous items listed were supplied at intervals of less than ninety days over a long period of time as ordered for the defendant Hobbs by Keyser, Inc. on an open account. In this situation the finding of the Court that the contract was an entire or continuing one is sustainable. Calef v. Brinley, 58 N.H. 90. The defendants admit that this conclusion is in accord with authorities elsewhere (97 A.L.R. 781 (n)) and that the precise question involved here has not been decided in this state. We discover nothing in our cases which compel as a matter of law a decision contrary to the finding and ruling of the Trial Court which, we believe, represents the better view. The order is
Decree affirmed.
GOODNOW, J., did not sit: the others concurred.