Opinion
May 6, 1901.
May 24, 1901.
Present: HOLMES, C.J., KNOWLTON, LATHROP, HAMMOND, LORING, JJ.
If a respondent to a petition to enforce a mechanic's lien wants further issues presented to the jury, he must ask for them under Pub. Sts. c. 191, § 21, and, having omitted to do so, he cannot object after a finding for the petitioner on each of the issues presented to the jury, that the findings are not sufficient to justify the establishment of the lien. If the issues and the answers thereto do not make out a case, the court will assume that the other necessary facts were conceded or found by the judge.
PETITION to enforce a mechanic's lien for services performed by the petitioner as an architect on a building on Massachusetts Avenue in Cambridge owned by the respondent, filed December 7, 1899.
The Superior Court made a decree establishing the lien for $2,325 damages and $131.98 costs. From this decree the respondent appealed.
The issues submitted to the jury in the Superior Court and the answers to them were as follows:
"1. Did the respondent enter into a contract with the petitioner as set forth in the petitioner's petition? The jury answer, Yes. 2. Was the labor performed as set forth in the petitioner's account annexed? The jury answer, Yes. 3. What is the value of said labor? The jury answer, $2,325. 4. Did the petitioner within thirty days from the twenty-fifth day of October, 1899, file in the Middlesex South District Deeds a statement of a just and true account of the amount due him with all just credits given? The jury answer, Yes. 5. At the time said statement was filed by said petitioner did he knowingly and wilfully claim more than was his due? The jury answer, No."
The only contention of the respondent was that the answers to the above issues alone were not sufficient to justify the decree.
J.H. Vahey C.H. Innes, for the respondent.
A.J. Daly, for the petitioner.
This is an appeal from a decree of a justice of the Superior Court establishing a mechanic's lien upon a parcel of land in Cambridge, for a certain amount. The record contains a copy of the petition, the answer, five issues of fact, to which the jury returned answers in favor of the petitioner, the decree, and an appeal therefrom by the respondent.
The only ground urged by the appellant is that two other questions should have been put to the jury and passed upon, namely, whether the labor was performed by virtue of the agreement provided for in the statute, and that the statement required by the Pub. Sts. c. 191, § 6, was properly filed.
The short answer to the appellant's contention is that if she desired further issues to the jury she should have asked for them, as she had the right to do under the Pub. Sts. c. 191, § 21. If there is no contention about any fact, there is no necessity of submitting an issue concerning that fact to the jury; and it must be assumed, as against the appellant, that, if the issues and the answers thereto do not make out a case, the other necessary facts were conceded or found by the judge.
Decree affirmed.