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Me.)

WASHBURN Y UNITED STATES CASUALTY CO.

577

had been renewed and was in full force at done with them, including the policy and rethe time of the accident.

newal about which we have been talking? It was not so distinctly and conclusively “A. He returned them to me and I put shown, however, by direct evidence, that Mr. them back in the safe." Washburn intended to have it renewed or It is thus made clear that there was a understood that it had been renewed. But correlative obligation between the insurer this evidence is now supplied, and all ques- and the insured, and the contract was legaltion upon that point removed by the testi- ly renewed. mony given in her deposition at this second [3] But it is further contended in behalf hearing, by Miss Lord, who had been pol of the company that the warranties, in the icy clerk and bookkeeper in Mr. Griffin's of plaintiff's application for the policy and in fice for 13 years. In answer to interroga- the schedule of statements, that he was a tories she testified as follows upon this “hotel keeper" and that he was "free from branch of the case:

any intemperate habits,” were not true. "Q. Were you acquainted with Mr. Henry It is proved beyond controversy, however, Washburn in his lifetime?

that Mr. Griffin himself, the defendant's "A. Yes, sir.

general agent, wrote the application for the "Q. Shortly before his death did Mr. policy and under his general authority and Washburn call at Mr. Griffin's office?

implied request signed Mr. Washburn's name "A. Yes, sir.

to it, and answered the interrogatories re"Q. Will you fix the time as nearly as specting his occupation and habits, in the you can?

absence of Mr. Washburn, and without any "A. I can't say whether it was a week or knowledge on his part of the nature of the two weeks before, but it was a very short answers.

These facts are

are conclusive as time before his death.

against the company's contention upon this "Q. Now, will you state what was said point. and done by Mr. Washburn at that time, It is provided by section 93 of chapter 49, and what you yourself did in connection R. S., that "such agents (of foreign insurance with his business?

companies) and the agents of all domestic "A. I can't remember the exact words he companies shall be regarded as in the place said. Mr. Washburn came in and asked if of the company in all respects regarding any Mr. Griffin was here, and when told he was insurance effected by them. The company not, said he had no special word to leave, is bound by their knowledge of the risk and except that he was going away on a short of all matters connected therewith. Omistrip, and for Mr. Griffin to look after his in- sions and misdescriptions known surance matters, as he always had. He ask- agent shall be regarded as known by the ed some question about some insurance, I company and waived by it as if noted in don't just remember what, and I went to the policy." In Marston v. Life Ins. Co., the safe and got all his insurance papers— 89 Me. 266, 36 Atl. 389, 56 Am. St. Rep. 412, they were bound together-gave them to it was held in the case of a life insurance him, and he took them and ran them over policy that where the application is drawn in his hand. I don't know how much time by the authorized agent of the company, and he spent on them—I can't tell. He handed the answers to the questions therein are them back and started to go out, and came written by the agent in filling the applicaback and just repeated his injunction for tion, without fraud or collusion on the part Mr. Griffin to keep up his insurance, and re- of the applicant, the company is estopped marked that he would do so anyway. That from controverting the truth of such statewas all the conversation he had. I think ments in an action on the policy. See, also, Mr. Washburn's own words were for John Hilton v. Phoenix Assurance Co., 92 Me. 272, not to let anything expire, if I remember his 42 Atl. 412; Hewey V. Insurance Co., 100 own words. That was what he always said. Me. 523, 62 Atl. 600.

"Q. Whether or not this policy, No. As stated in the opinion in the case last X12680, was handed by you to Mr. Wash- cited: “It is incumbent upon the company burn among the other policies?

to show that the misrepresentations were A. It was.

his (the applicant's), and not mistakes or “Q. Whether or not at that time it had at- misrepresentations of its own. tached to it the renewal agreement A29650, Otherwise it would be in the power of the countersigned by Mr. Griffin?

company or its agents in such a case to “A. It had.

fraudulently destroy the legal status of the "Q. To make my question clear, whether policy so obtained.” or not the renewal agreement had been It is conceded, however, that the warranty countersigned by Mr. Griffin before that in regard to the applicant's occupation was time?

true at the date of the policy, and it satis"A. Yes, sir.

factorily appears that, although he ceased to "Q. After Mr. Washburn had looked over be a hotel keeper before the renewal of the his policies, as you have testified, what was policy, his change of occupation in no re

81 A.-37

A part

spect increased the hazard. And whatever

And whatever | By agreement of the parties this case was the truth may have been in regard to the “reported to the law court to determine for use of intoxicating liquors by the insured, what amount this plaintiff has a lien upon the evidence presented to the court is wholly the land and building described in its bill insufficient to support the conclusion that he upon the facts stated in the referee's report, was a man of "intemperate habits” within and to direct judgment accordingly.” the meaning of that term as used in pol The referee's report discloses the following icies of insurance and interpreted by the facts and conclusions respecting the case at courts.

bar: Judgment for the plaintiff for $5,000, with "The Fletcher-Crowell Company contractinterest from May 21, 1908.

ed with Chevalier and Ducharme to deliver on cars at Lewiston all the iron or steel

work described in the account annexed to (108 Me. 435)

their bill in equity. It was all shipped at FLETCHER-CROWELL CO. v. CHEVA

different times by railroad to Lewiston. LIER et al.

Some of it consisted of special castings, (Supreme Judicial Court of Maine. Nov. 22, made specially for this building, and not 1911.)

fitted to any other. Some of it was taken by 1. MECHANICS' LIENS (8 48*)-RIGHT TO LIEN Chevalier and Ducharme to the site of the -MATERIALS FURNISHED, BUT NOT USED.

Under Rev. St. c. 93, '$ 29, giving a lien building, and some of it still remains in the for materials furnished in erecting, etc., a build- possession of the railroad company. ing, one is not entitled to a lien for materials of the steel was used in the construction of furnished, but not used in the construction of the building. the building against which lien is sought.

“After the building was partly constructed, [Ed. Note.For other cases, see Mechanics' Liens, Cent. Dig. 8 51; Dec. Dig. $ 48.*]

owing to a heavy rainstorm and washout, a 2. MECHANICS' LIENS ($ 47*)-RIGHT TO LIEN portion of the building settled, and re

-MATERIALS FURNISIIED, USED AND AFTER-quired a rebuilding to some extent.
WARDS TAKEN OUT.

owners and the contractors disagreed as to Under Rev. St. c. 93, & 29, giving a lien which party the loss or damage should fall for material furnished for a building, one is entitled to a lien for iron columns set in the upon. The contractors were willing to stand building, but afterwards taken out at the own- a portion, but not all, of the expense of reer's order on revision of the plans.

building the damaged portion. Thereupon [Ed. Note. For other cases, see Mechanics' L'Union Musicale prevented the contractors Liens, Cent. Dig. $ 50; Dec. Dig. § 47.*]

from going on with their work, under the Report from Supreme Judicial Court, An- existing conditions, as to rebuilding. droscoggin County, in Equity.

“Afterwards the plans of the building Action by the Fletcher-Crowell Company were remodeled, and the building was built against Ovid Chevalier and others. On re-one story lower than was at first contemplatport. Judgment for plaintiff.

ed. Owing to the change, some of the lumBill in equity to enforce a mechanic's lien ber furnished by Richardson, Dana & Co. for materials alleged to have been furnished and some of the special castings and other in the construction of a certain building in steel furnished by the Fletcher-Crowell Com

pany were not needed and were not used. Lewiston.

But the owner completed the building on its Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and own account and used some of the Richard

son, Dana & Co. lumber and some of the HALEY, JJ.

Fletcher-Crowell Company steel in the conGeorge C. Wing and George C. Wing, Jr., struction. For this lumber and steel the for plaintiff. McGillicuddy & Morey, for owner does not object to paying, or to havowner of building.

ing liens adjudged.

“The contractors, after they ceased workWHITEHOUSE, C. J. In this suit the ing, notified the Fletcher-Crowell Company plaintiff seeks to enforce a mechanic's lien that they found themselves unable to continfor materials alleged to have been furnished ue the work, and directed that company to to the defendants Chevalier and Ducharme order the iron then in the possession of the in the construction of a building which they railroad company to be reshipped. This had contracted to erect for the defendant was not done. L'Union Musicale, the owner of the land, “A particular controversy exists as to two and for which they had agreed to provide columns, ordered of and shipped by the all the materials and perform all the work. Fletcher-Crowell Company. They were made

This case, with three others against the in accordance with the specifications, and same defendants, was referred to Mr. Jus- were actually set up in the building by tice Savage for determination, Upon his the contractors. Later they were removed report a final disposition was made of the at the request of the building committee of other three cases; the one at bar being the L'Union Musicale, it being claimed that the only case for the consideration of the court. I columns had not been properly set.

Me.)

FLETCHER-CROWELL Co. v. CHEVALIER

579

“As to the claim of the Fletcher-Crowell & Eng. Ann. Cas., p. 11, in a note to CenCompany, I find that this plaintiff under its tral Lumber Company V. Braddock Land contract with Chevalier and Ducharme fur- & G. Co., 84 Ark. 560, 105 S. W. 583. In the nished materials for the erection of the principal case it was held that, under a building to the amount of $2,025.90. Of statute authorizing a mechanic's lien for this, materials to the amount of $1,720.60 the value of material furnished "for any were never used in the construction of the building," the materials furnished must be building, at any time, in any way. Two actually used in its construction before the steel columns, for which $140 is charged, lien can attach. In the note Maine is were set in the building, and afterwards placed in the category of 15 states that have removed, as already stated. Materials to adopted this rule; but an equal number of the amount of $165.30 were used in the erec- states are cited in support of the contrary tion of the building, and remain in it.

view, that the lien exists as to all materials “In the Fletcher-Crowell Company case furnished in good faith, whether they actuI report the facts as above stated, for the ally become part of the structure or not. judgment of the court on the law involved. In 19 "Annotated Cases," p. 588, it is said

"If the court is of opinion that the Fletch- in the note to the principal case that "the er-Crowell Company has a lien for all the recent cases indicate a tendency of the materials furnished for the erection of the courts to hold that the lien does not exist building, whether used or unused, I award unless the materials were actually used in that it shall have a personal judgment and the erection of the building.” judgment for a lien upon the land and build In support of this statement the following described in its bill, with costs, each in ing cases are cited: Potter Mfg. Co. v. Meythe sum of $2,025.90, with interest from Sep- er, 171 Ind. 513, 86 N. E. 837, 131 Am. St. tember 21, 1910. If, however, the court is Rep. 267; Niagara Oil Co. v. McBee, 45 Ind. of opinion that the plaintiff has no liens App. 576, 91 N. E. 250; Gilbert Hunt v. for materials which did not enter into the Parry (1910) 59 Wash. 646, 110 Pac. 541; construction of the building and become a U. S. Water Co. v. S. S. Realty Co., 152 Mo. part of it, then I award that its lien judgment App. 300, 133 S. W. 371. Although the earaforesaid shall be for the sum of $305.30, or lier cases in Indiana generally upheld the $165.30 only, with interest and costs as doctrine that the materials need not be acstated, according as the court determines tually used in the building, the court in that the plaintiff has, or has not, a lien for that state in the recent case of Potter Mfg. the two columns, set in the building and af-Co. v. Meyer, supra, distinctly appears to terwards removed, as already stated." have adopted the opposite rule. In the

[1, 2] Upon the facts thus reported two opinion it is said: “It is well settled, both questions are presented for the determina- in this state and elsewhere, that a materition of this court: First, whether the plain- alman claiming a lien must ordinarily show tiff is entitled to a lien for materials fur- that his materials were furnished for and nished to the amount of $1,720.60, "which were actually used in the erection of the were never used in the construction of the building against which the lien is asserted.” building at any time in any way"; and, The reasons for this rule and the warrant second, whether the plaintiff is entitled to a for placing Maine in the category of states lien for the item of $140 for the two iron that have adopted it are illustrated and statcolumns that were set in the building and ed in the following cases: afterwards taken out by order of L'Union In Lambard v. Pike, 33 Me. 141, in speakMusicale.

ing of a stove and funnel, the court said: "If It is provided by section 29 of chapter 93 placed in the mill, it would be but a fixture of the Revised Statutes that "whoever per- used for its comfortable occupation. To create forms labor or furnishes labor or materials a lien the materials must be used for erectin erecting, altering, moving or repairing a ing, altering, or repairing the building-must house, building or appurtenances

* be so applied as to constitute a part of the by virtue of a contract with or by consent building.” In Ames v. Dyer, 41 Me. 397, in of the owner, has a lien thereon and on the support of the conclusion that the molds of land on which it stands

to secure a vessel cannot be regarded as a part of payment thereof with costs."

the materials with which it is constructed, Whether it is necessary to prove that the the court cited Phillips v. Wright, 5 Sandf. materials furnished were actually incorpo- (N. Y.) 342, and quoted from the opinion as rated in the building in order to create a lien follows: “The whole theory of a lien for laupon it, under the above statute and others bor and materials rests upon the basis that having substantially the same tenor and pur- such labor and materials have entered into pose, is a question not entirely free from dif- and contributed to the production or equipficulty and one with respect to which courts ment of the thing upon which the lien is of equal respectability have reached differ- impressed.

Can it be said that ent conclusions.

the materials are furnished for and toMany of the earlier cases upon the sub- wards building a ship, when no part of ject are collected and considered in 13 Am. them enters into or becomes a part of the

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ship?" In Taggard v. Buckmore, 42 Me. 77, In Sweet v. James, 2 R. I. 270, it was held it was held that materials sold by one party that, “whatever may be the condition of the to another upon representation that they materials furnished, whether very rough or would be wrought into a vessel which was perfectly adapted to their purpose,

* in process of construction by him, but which and from whomsoever they may have been were not so used, would not create a lien originally purchased, and although kept by on the vessel. In the opinion the court the contractor as merchandise, his lien is said: “The principle embraced in the stat- not affected by these considerations, proute is founded in natural justice, that the vided only they are incorporated in the work party who has enhanced the value of the contracted for." So in Hinckley & Egery property by incorporating therein his labor Iron Co. v. James, 51 Vt. 210, it was held or materials shall have security on the same, that "a mechanic's lien covers only such of though changed in form and inseparable the materials furnished as are attached to from all property. But justice does not re- the realty, so as to be a part of it at the quire that he should be allowed the securi- time the memorandum required by statute is ty in the same property for the price of filed in the town clerk's office.” materials which became no part thereof." In Massachusetts it is expressly provided See, also, Baker v. Fessenden, 71 Me. 293, by statute that a person has a lien for "main which it was held that the statute will terials furnished and actually used in the not give a lien on a mill for labor perform- erection of the building." Rev. Laws 1902, ed in repairing machinery, "unless it was vol. 2, c. 197, § 1. done on some portion of the realty," and See, also, Smalley v. Gearing, 121 Mich. Hanson v. Publishing Co., 97 Me. 102, 53 190, 79 N. W. 1114, 80 N. W. 797; North Atl. 990, in which the underlying principle v. Globe Fence Co., 141 Mich. 557, 108 N. W. of the statute, as set forth in the foregoing 285; Deardorff v. Everhartt, 7+ Mo. 37; cases, was reaffirmed by the statement in McConnell v. Hewes, 50 W. Va. 33, 40 S. E. the opinion that "a lien is given upon the 436; Hill v. Bowers, 45 Kan. 592, 26 Pac. ground that the work has been a benefit to 13; Ryndak v. Seawell, 13 Okl. 737, 76 Pac. the realty and has enhanced its value.” 170; Fitch v. Howitt, 32 Or. 396, 52 Pac. 192;

It is true that the facts in these cases Silvester v. Coe Quartz Mine Co., 80 Cal. 513, differ so materially from those at bar that 22 Pac. 217; McAnally v. Hawkins Lumber the decisions are not authoritative prece- Co., 109 Ala. 397, 19 South. 417; Wardlaw v. dents in support of the defendant's conten- Troy Oil Mill, 74 S. C. 368, 53 S. E. 638, 114 tion in this case; but they unmistakably in- Am. St. Rep. 1004. dicate the trend of the judicial thought up The principles of equitable estoppel are on the question in this state.

not applicable to the facts of this case. In Chapin v. Persse, 30 Conn. 472, 79 Am. It is accordingly the opinion of this court Dec. 263, the court said:

that the plaintiff is not entitled to a lien on “The theory of the lien is that the party the land and building for the materials furfurnishing materials for the erection or the nished to the amount of $1,720.00, which repair of buildings on credit retains his were not used in the construction of the claim to them after they have gone into the building, but for a personal judgment only building, and to enable him to enforce it against the contractors. his lien is spread over all the property with With respect to the "particular controwhich the materials have become insepara- versy" in regard to the two steel colunins, bly connected. Hence he is given a lien up valued at $140, it appears from the findings on the whole building and the land on which of the referee that "they were made in ac

But to give a lien for all the ma-cordance with the specifications and were terial sold for the purpose of going into the actually set up in the building by the conbuilding, irrespective of the actual use of it tractors," and that "later they were removfor that purpose, might have the effect of ed at the request of the building committee creating a lien to the full value of the build of the L'Union Musicale, it being claimed ing, and the land on which it stands, in fa- that the columns had not been properly set." vor of parties whose property did not in There is no finding, however, that these fact any of it go into the building, and thus columns were not in fact properly set in the the persons who had in fact erected or re- building, or that they were not of suitable paired the building, or who had done work quality and dimensions and perfectly adaptupon it, would be deprived of any advantage ed to the purpose for which they were defrom the liens given them by the statute. signed. They were in fact incorporated into Such surely ought not to be, and as we be the building and became a part of the reallieve was never intended to be, the result ty. But it appears from the findings of the in any case. We think, therefore, that, to referee that after the building settled "the entitle the furnisher of the materials to a plans were remodeled, and the building was lien, his property must not only be furnish- constructed one story lower than was at ed for the erection or the repair of a build-first contemplated.” For aught that appears ing, but must actually go into the building these columns were "a benefit to the build

Me.)

HILL V. DAY

581

structed under the original plans. But they | 6. APPEAL AND_ERROR (§ 1078*)—WAIVER OF were removed by the owner, and so far as

OBJECTIONS-FAILURE TO BRIEF.

Exceptions not argued in exceptant's brief appears without the consent of either the

are deemed waived. contractors or the plaintiff, and without any [Ed. Note.-For other cases, see Appeal and failure of duty in that respect on the part Error, Cent. Dig. $$ 4256–4261; Dec. Dig. § of the plaintiff. The lien to which the plain- 1078.*] tiff was entitled when the columns became a

Exceptions from Supreme Judicial Court, part of the realty was not thereby defeated. York County. The conclusion, therefore, is that the cer

Action by Ester P. Hill against Frederick tificate must be:

A. Day and another. Nonsuit, and plaintiff Personal judgment for the plaintiff for brings exceptions. Exceptions overruled. $1,720.60, with interest from September 21,

Action on the case to recover damages for 1910, against the defendants Chevalier and Ducharme only.

personal injuries alleged to have been susJudgment for the plaintiff against Cheva- tained by the plaintiff, and caused by the lier and Ducharme for $305.30, with inter- falling of plastering upon the plaintiff from

the ceiling in the kitchen of a certain dwellest thereon from September 21, 1910, and a lien therefor on the land and building de ing house owned by the defendant Day. scribed in the writ.

Plea, the general issue. At the conclusion of the plaintiff's evidence, the presiding jus

tice ordered a nonsuit. To this ruling and (108 Me. 467)

certain ruling excluding certain testimony HILL V. DAY et al.

the plaintiff excepted. (Supreme Judicial Court of Maine. Nov., Argued before WHITEHOUSE, C. J., and 1911.)

SAVAGE, SPEAR, CORNISH, KING, BIRD, 1. LANDLORD AND TENANT (§ 162*)-SUBTEN- and HALEY, JJ. ANTS — DUTY OF LANDLORD SAFETY OF PREMISES.

Mathews & Stevens, for plaintiff. John P. A landlord is under no greater duty to a Deering, for defendant Day. subtenant respecting safety of the premises than to the tenant, [Ed. Note. For other cases, see Landlord and

KING, J. This case comes upon excepTenant, Dec. Dig. $ 162.*]

tions to an order of nonsuit, and other ex2. LANDLORD AND TENANT ($ 150*)—SAFETY ceptions by plaintiff to the exclusion of tesOF PREMISES-LIABILITY OF LANDLORD. timony. The action is to recover damages

A lessor of a dwelling house does not im- for personal injuries alleged to have been pliedly warrant that it is reasonably fit for use, and is not bound to make repairs unless he has sustained by the falling of plastering upon expressly agreed to do so; the principle of the plaintiff from the ceiling in the kitchen caveat emptor applying.

of a dwelling house owned by the defendant [Ed. Note. For other cases, see Landlord and

Day. Tenant, Cent. Dig. $8536–557; Dec. Dig. 8 150.*]

Exceptions to the order of nonsuit.

The declaration alleges that the house was 3. LANDLORD AND TENANT (§ 164*) — SUBTENANTS—LANDLORD'S LIABILITY.

occupied by Clementine R. Foss (one of the The lessor of a dwelling house is not liable defendants) under a contract with Day, and to a subtenant for injury caused by plaster fall- used by her as a dwelling house and for the ing, in the absence of a showing of an agree letting of rooms. No evidence, however, was ment by the landlord to keep the premises in repair.

introduced as to any contract of tenancy be[Ed. Note. For other cases, see Landlord and tween Mr. Day and Mrs. Foss. The plainTenant, Cent. Dig. 88 630–641; Dec. Dig. stiff testified that she hired of Mrs. Foss a 164.*]

front room, with the privilege of using the 4. LANDLORD AND TENANT ($ 169*)-DEFECTS kitchen for passing through to the back IN PREMISES KNOWLEDGE – EVIDENCE

yard, and for some cooking and light houseSUFFICIENCY.

Evidence in an action by a subtenant keeping, and began her occupancy on Novemagainst a landlord for injury caused by plaster ber 10, 1908. On the 20th of Novemler the falling held insufficient to show that the land- plaintiff, having passed from the back yard lord knew of the defective condition.

through the kitchen with some clothes, came [Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. $ 169.*]

back into the kitchen and shut a door—pre5. LANDLORD AND TENANT ($ 164*) — INJURY sumably the door leading from the kitchen TO SUBTENANT - LANDLORD'S LIABILITY

to the yard—whereupon a portion of the ceilGRATUITOUS UNDERTAKING.

ing plastering fell upon her, causing the inA subtenant, suing the lessor of premises juries complained of. for injury caused by plaster falling, cannot

[1] If it bé assumed that the relation of show liability under gratuitous undertaking by the landlord to repair and negligent perform-landlord and tenant existed between Mr. ance of the work, in the absence of a showing Day and Mrs. Foss with respect to the house that the subtenant was a party to the under- in question, as alleged in the declaration, the taking or knew of it before the accident. [Ed. Note.-For other cases, see Landlord and

fact that the plaintiff was using the kitchen Tenart, Cent. Dig. $8 630–641; Dec. Dig. $ by permission of Mrs. Foss would create no 164.*]

greater liability on the part of Day to the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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