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Me.) WASHIBURN V. UNITED had been renewed and Was in full force at the time Of the accident. It was not so distinctly and conclusively shown, however, by direct evidence, that Mr. Washburn intended to have it renewed Or understood that it had been renewed. But this evidence is now supplied, and all question upon that point removed by the testimony given in her deposition at this second hearing, by Miss Lord, who had been policy clerk and bookkeeper in Mr. Griffin's office for 13 years. In answer to interrogatories she testified as follows upon this branch Of the CaSe: “Q. Were you acquainted with Mr. Henry Washburn in his lifetime? “A. Yes, sir. “Q. Shortly before his death did Mr. Washburn call at Mr. Griffin's Office? “A. Yes, Sir. “Q. Will you fix the time as nearly as you can? “A. I can’t Say Whether it Was a Week Or two weeks before, but it was a very short time before his death. “Q. NOW, Will you State What Was Said and done by Mr. Washburn at that time, and what you yourself did in connection With his busineSS? “A. I can’t remember the exact words he said. Mr. Washburn came in and asked if Mr. Griffin Was here, and When told he WaS not, said he had no special word to leave, except that he was going away on a short trip, and for Mr. Griffin to look after his inSurance matters, as he always had. He asked some question about some insurance, I don’t just remember what, and I went to the Safe and got all his insurance papers— they were bound together—gave them to him, and he took them and ran them over in his hand. I don’t knoW how much time he spent on them—I can’t tell. He handed them back and started to go out, and came back and just repeated his injunction for Mr. Griffin to keep up his insurance, and remarked that he would do so anyway. That WaS all the COnVerSation he had. I think Mr. Washburn’s OWn Words Were for John not to let anything expire, if I remember his OWn Words. That Was What he always Said. “Q. Whether or not this policy, No. X12680, was handed by you to Mr. Washburn among the other policies? “A. It WaS. “Q. Whether or not at that time it had attached to it the renewal agreement A296.50, CounterSigned by Mr. Griffin? “A. It had. “Q. To make my question clear, whether Or not the renewal agreement had been countersigned by Mr. Griffin before that time? “A. Yes, sir. “Q. After Mr. Washburn had looked over his policies, as you have testified, what was 81 A.—37

STATES CASUALTY CO. 577 done with them, including the policy and renewal about which we have been talking? “A. He returned them to me and I put them back in the Safe.” It is thus made clear that there Was a correlative obligation between the insurer and the insured, and the contract Was legally renewed. [3] But it is further contended in behalf of the company that the Warranties, in the plaintiff's application for the policy and in the schedule of statements, that he was a “hotel keeper” and that he was “free from any intemperate habits,” were not true. It is proved beyond controversy, however, that Mr. Griffin himself, the defendant’s general agent, Wrote the application for the policy and under his general authority and implied request signed Mr. Washburn's name to it, and answered the interrogatories respecting his occupation and habits, in the absence of Mr. Washburn, and without any knowledge on his part of the nature of the answers. These facts are conclusive as against the company’s contention upon this point. It is provided by section 93 of chapter 49, R. S., that “such agents (of foreign insurance Companies) and the agents of all domestic companies shall be regarded as in the place of the company in all respects regarding any insurance effected by them. The Company is bound by their knowledge of the risk and Of all matters connected therewith. Omissions and misdescriptions known to the agent shall be regarded as known by the company and waived by it as if noted in the policy.” In Marston V. Life Ins. Co., 89 Me. 266, 36 Atl. 389, 56 Am. St. Rep. 412, it was held in the case of a life insurance policy that where the application is drawn by the authorized agent of the company, and the answers to the questions therein are written by the agent in filling the application, without fraud or collusion on the part of the applicant, the company is estopped from controverting the truth of such statements in an action. On the policy. See, alS0, Hilton v. Phoenix Assurance Co., 92 Me. 272, . 42 Atl. 412; Hewey v. Insurance Co., 100 Me. 523, 62 Atl. 600. As stated in the Opinion in the Case last cited: “It is incumbent upon the company to show that the misrepresentations were his (the applicant'S), and not mistakes Or misrepresentations of its own. * * * Otherwise it would be in the power of the Company Or itS agentS in Such a CaSe to fraudulently destroy the legal status of the policy so obtained.” It is conceded, however, that the Warranty in regard to the applicant's Occupation was true at the date of the policy, and it satisfactorily appears that, although he ceased to be a hotel keeper before the renewal Of the policy, his change of occupation in no re

spect increased the hazard. And whatever the truth may have been in regard to the use of intoxicating liquors by the insured, the evidence presented to the court is wholly insulificient to support the conclusion that he was a man of “intemperate habits” within the meaning of that term as used in policies of insurance and interpreted by the COUlrtS. Judgment for the plaintiff for $5,000, with interest from May 21, 1908.

(108 Me. 435) FLETCHER-CROWELL CO. V. CHEVALIER et al. (Supreme Judicial Court of Maine. Nov. 22, * 1911.)

1. MECHANICs’ LIENs (§ 48*)—RIGHT To LIEN —MATERIALS FURNISHED, BUT NOT USED. Under Rev. St. c. 93, § 29, giving a lien for materials furnished in erecting, etc., a building, one is not entitled to a lien for materials furnished, but not used in the construction of the building against which lien is sought. [Ed. Note.—For other cases, see Mechanics' Liens, Cent. Dig. § 51; Dec. Dig. § 48.*]

2. MECHANICs’ LIENs (§ 47*)—RIGHT TO LIEN —MATERIALS FURNISIIED, USED AND AFTERWARDS TAKEN OUT. Under Rev. St. c. 93, § 29, giving a lien for material furnished for a building, one is entitled to a lien for iron columns set in the building, but afterwards taken out at the owner's order on revision of the plans. [Ed. Note.—For other cases, see Mechanics' Liens, Cent. Dig. § 50; Dec. Dig. § 47.*]

Report from Supreme Judicial Court, Androscoggin County, in Equity.

Action by the Fletcher-Crowell Company against Ovid Chevalier and others. On report. Judgment for plaintiff.

Bill in equity to enforce a mechanic's lien for materials alleged to have been furnished in the construction of a certain building in DeWiston.


George C. Wing and George C. Wing, Jr., for plaintiff. McGillicuddy & Morey, for owner of building.

WHITEHOUSE, C. J. In this suit the plaintiff seeks to enforce a mechanic's lien for materials alleged to have been furnished to the defendants Chevalier and Ducharme in the construction of a building which they had contracted to erect for the defendant L’Union Musicale, the owner of the land, and for which they had agreed to provide all the materials and perform all the Work.

This case, With three others against the same defendants, was referred to Mr. Justice Savage for determination. Upon his report a final disposition was made of the other three cases; the One at bar being the only case for the consideration of the court.

By agreement of the parties this case was “reported to the law court to determine for What amount this plaintiff has a lien upon the land and building described in its bill upon the facts Stated in the referee's report, and to direct judgment accordingly.” The referee's report discloses the following facts and conclusions respecting the case at bar: “The Fletcher-Crowell Company contracted With Chevalier and Ducharme to deliver On CarS at LeWiSton all the iron Or Steel Work described in the account annexed to their bill in equity. It was all shipped at different times by railroad to Lewiston. Some Of it consisted of Special castings, made specially for this building, and not fitted to any other. Some of it was taken by Chevalier and Ducharme to the site of the building, and some of it still remains in the possession of the railroad company. A part Of the Steel WaS used in the Construction Of the building. “After the building was partly constructed, OWing to a heavy rainstorm and Washout, a portion of the building settled, and required a rebuilding to some extent. The owners and the contractors disagreed as to Which party the loss or damage should fall upon. The contractors were willing to stand a portion, but not all, of the expense of rebuilding the damaged portion. Thereupon L'Union Musicale prevented the contractors from going on. with their work, under the existing conditions, as to rebuilding. “Afterwards the plans of the building were remodeled, and the building was built one story lower than was at first contemplated. Owing to the change, some of the lumber furnished by Richardson, Dana & Co. and some of the special castings and other steel furnished by the Fletcher-Crowell Company were not needed and Were not used. But the owner completed the building on its own account and used some of the RichardSon, Dana & Co. lumber and Some of the Fletcher-Crowell Company steel in the construction. For this lumber and Steel the OWner does not object to paying, Or to having liens adjudged. “The contractors, after they ceased working, notified the Fletcher-Crowell Company that they found themselves unable to continue the work, and directed that company to order the iron then in the possession of the railroad company to be reshipped. This Was not done. “A particular controversy exists as to two columns, ordered of and Shipped by the Fletcher-Crowell Company. They were made in accordance with the Specifications, and were actually set up in the building by the contractorS. Later they Were removed at the request of the building committee of L’Union Musicale, it being claimed that the columns had not been properly set.


“As to the claim of the Fletcher-Crowell Company, I find that this plaintiff under its COntract With Chevalier and Ducharme furnished materials for the erection of the building to the amount of $2,025.90. Of this, materials to the amount of $1,720.60 Were never used in the construction of the building, at any time, in any way. Two , Steel Columns, for Which $140 is charged, Were Set in the building, and afterwards removed, as already stated. Materials to the amount of $165.30 Were used in the erection of the building, and remain in it. “In the Fletcher-Crowell Company case I report the facts as above stated, for the judgment Of the court on the law involved. “If the court is of opinion that the Fletcher-Crowell Company has a lien for all the materialS furnished for the erection of the building, whether used or unused, I award that it shall have a personal judgment and judgment for a lien upon the land and building described in its bill, with costs, each in the sum of $2,025.90, with interest from September 21, 1910. If, however, the court is Of Opinion that the plaintiff has no liens for materials which did not enter into the construction of the building and become a part of it, then I award that its lien judgment aforesaid shall be for the sum of $305.30, or $165.30 only, With interest and costs as Stated, a CCOrding as the Court determines that the plaintiff has, or has not, a lien for the two columns, set in the building and afterWards removed, as already stated.” [1, 2] Upon the facts thus reported two questions are presented for the determination of this court: First, whether the plaintiff is entitled to a lien for materials furnished to the amount of $1,720.60, “which Were never used in the COnStruction Of the building at any time in any Way”; and, second, whether the plaintiff is entitled to a lien for the item of $140 for the two iron Columns that Were Set in the building and afterwards taken out by Order of L'Union Musicale. It is provided by section 29 of chapter 93 of the Revised Statutes that “Whoever performs labor or furnishes labor or materials in erecting, altering, moving or repairing a house, building or appurtenances * * * by virtue of a contract with or by consent of the owner, has a lien thereon and on the land on which it stands * * * * to secure payment thereof with costs.” Whether it is necessary to prove that the materials furnished were actually incorporated in the building in order to create a lien upon it, under the above statute and others having substantially the same tenor and purpOSe, is a question not entirely free from difficulty and One With respect to which courts of equal respectability have reached different conclusions. . Many of the earlier cases upon the subject are collected and considered in 13 Am.

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& Eng. Ann. Cas., p. 11, in a note to Central Lumber Company V. Braddock Land & G. Co., 84 Ark. 560, 105 S. W. 583. In the principal case it was held that, under a statute authorizing a mechanic's lien for the Value Of material furnished “for any building,” the materials furnished must be actually used in its construction before the lien Can attach. In the note Maine iS placed in the category of 15 states that have adopted this rule; but an equal number of States are cited in Support Of the COntrary View, that the lien exists as to all materials furnished in good faith, whether they actually become part of the Structure or not. In 19 “Annotated Cases,” p. 588, it is said in the note to the principal case that “the recent cases indicate a tendency of the COurtS to hold that the lien does not exist unless the materials were actually used in the erection of the building.” In support of this statement the following cases are cited: Potter Mfg. Co. v. Meyer, 171 Ind. 513, 86 N. E. 837, 131 Am. St. Rep. 267; Niagara Oil CO. V. McBee, 45 Ind. App. 576, 91 N. E. 250; Gilbert Hunt V. Parry (1910) 59 Wash. 646, 110 Pac. 541; U. S. Water Co. v. S. S. Realty Co., 152 Mo. App. 300, 133 S. W. 371. Although the earlier Cases in Indiana generally upheld the doctrine that the materials need not be actually used in the building, the court in that state in the recent case of Potter Mfg. Co. V. Meyer, Supra, distinctly appears to have adopted the Opposite rule. In the Opinion it is said: “It is well settled, both in this state and elsewhere, that a materialman claiming a lien must ordinarily Show that his materials Were furnished for and were actually used in the erection of the building against which the lien is asserted.” The reaSOnS for this rule and the Warrant for placing Maine in the category of States that have adopted it are illustrated and Stated in the following cases: In Lambard V. Pike, 33 Me. 141, in Speaking of a stove and funnel, the court said: “If placed in the mill, it Would be but a fixture used for its Comfortable Occupation. To Create a lien the materials must be used for erecting, altering, or repairing the building—must be SO applied as to COnStitute a part Of the building.” In Ames v. Dyer, 41 Me. 397, in support of the conclusion that the molds of a VeSSel Cannot be regarded as a part Of the materials with which it is constructed, the court cited Phillips v. Wright, 5 Sandf. (N. Y.) 342, and quoted from the Opinion aS follows: “The Whole theory Of a lien for labor and materials rests upon the basis that Such labor and materialS have entered into and COntributed to the production Or equipment of the thing upon Which the lien is impressed. * * * Can it be said that the materialS are furnished for and towards building a ship, when no part of them enters into or becomes a part of the ship?” In Taggard v. Buckmore, 42 Me. 77, it was held that materials sold by one party to another upon representation that they Would be Wrought into a Vessel Which WaS in process of construction by him, but which Were not So used, Would not create a lien On the Vessel. In the Opinion the Court said: “The principle embraced in the statute is founded in natural justice, that the party Who has enhanced the Value Of the property by incorporating therein his labor or materials shall have security on the same, though changed in form and inseparable from all property. But justice does not require that he should be allowed the Security in the Same property for the price of materials Which became no part thereof.” See, also, Baker v., Fessenden, 71 Me. 293, in Which it WaS held that the Statute Will not give a lien On a mill for labor performed in repairing machinery, “unless it was done on some portion of the realty,” and Hanson W. Publishing Co., 97 Me. 102, 53 Atl. 990, in which the underlying principle of the statute, as set forth in the foregoing cases, was reaffirmed by the statement in the opinion that “a lien is given upon the ground that the work has been a benefit to the realty and has enhanced its value.” It is true that the facts in these CaSeS differ so materially from those at bar that the decisions are not authoritative precedents in Support of the defendant's Contention in this case; but they unmistakably indicate the trend of the judicial thought upOn the question in this State. In Chapin W. PerSSe, 30 Conn. 472, 79 Am. Dec. 263, the court said: “The theory of the lien is that the party furnishing materials for the erection Or the repair of buildings on credit retains his claim to them after they have gone into the building, and to enable him to enforce it his lien is spread over all the property With Which the materials have become inseparably connected. Hence he is given a lien upOn the Whole building and the land On Which it stands. But to give a lien for all the material sold for the purpose of going into the building, irrespective of the actual use of it for that purpose, might have the effect of creating a lien to the full value of the building, and the land on which it stands, in favor of parties whose property did not in fact any of it go into the building, and thus the persons who had in fact erected or repaired the building, or who had done Work upon it, would be deprived of any advantage from the liens given them by the Statute. Such surely ought not to be, and as We believe was never intended to be, the result in any case. We think, therefore, that, to entitle the furnisher Of the materialS to a lien, his property must not only be furnished for the erection or the repair of a building, but must actually go into the building

In Sweet V. James, 2 R. I. 270, it was held that, “whatever may be the condition of the materials furnished, whether very rough or perfectly adapted to their purpose, * * * and from whomsoever they may have been Originally purchased, and although kept by the Contractor as merchandise, his lien is not affected by these considerations, proVided only they are incorporated in the work Contracted for.” So in Hinckley & Egery Iron Co. v. James, 51 Vt. 240, it was held that “a mechanic's lien covers only such of the materials furnished as are attached to the realty, so as to be a part of it at the time the memorandum required by statute is filed in the to Wn Clerk’s Office.” In Massachusetts it is expressly provided by statute that a person has a lien for “materials furnished and actually used in the erection of the building.” ReV. LaWS 1902, Vol. 2, c. 197, § 1. See, also, Smalley V. Gearing, 121 Mich. 190, 79 N. W. 1114, 80 N. W. 797; North v. Globe Fence Co., 144 Mich. 557, 108 N. W. 285; Deardorff v. Everhartt, 74 Mo. 37; McConnell V. Hewes, 50 W. Va. 33, 40 S. E. 436; Hill V. Bowers, 45 Kan. 592, 26 Pac. 13; Ryndak V. Seawell, 13 Okl. 737, 76 Pac. 170; Fitch v. Howitt, 32 Or. 396, 52 Pac. 192; Silvester V. Coe Quartz Mine Co., 80 Cal. 513, 22 Pac. 217; McAnally v. Hawkins Lumber Co., 109 Ala. 397, 19 South. 417; Wardlaw v. Troy Oil Mill, 74 S. C. 368, 53 S. E. 658, 114 Am. St. Rep. 1004. The principles of equitable estoppel are not applicable to the factS Of this case. It is accordingly the Opinion of this Court that the plaintiff is not entitled to a lien on the land and building for the materials furnished to the amount of $1,720.00, Which were not used in the construction of the building, but for a personal judgment only against the contractorS. With respect to the “particular controversy” in regard to the two steel columns, valued at $140, it appears from the findings of the referee that “they were made in a Ccordance with the specifications and were actually set up in the building by the contractors,” and that “later they Were removed at the request of the building committee of the L'Union Musicale, it being claimed that the columns had not been properly Set.” There is no finding, however, that these columns were not in fact properly set in the building, or that they were not of Suitable quality and dimensions and perfectly adapted to the purpose for which they were designed. They were in fact incorporated into the building and became a part of the realty. But it appears from the findings of the referee that after the building settled “the plans were remodeled, and the building Was constructed One Story lower than Was at first contemplated.” For aught that appears these COlumns Were “a benefit to the buildMe.)

structed under the original plans. But they were removed by the owner, and so far as appears without the consent of either the contractors or the plaintiff, and Without any failure of duty in that respect on the part of the plaintiff. The lien to which the plaintiff Was entitled When the COlumnS became a part of the realty was not thereby defeated.

The conclusion, therefore, is that the certificate must be:

Personal judgment for the plaintiff for $1,720.60, with interest from September 21, 1910, against the defendants Chevalier and Ducharme Only.

Judgment for the plaintiff against Chevalier and Ducharme for $305.30, with interest thereon from September 21, 1910, and a lien therefor on the land and building deScribed in the Writ.

(108 Me. 467) HILL V. DAY et al. (Supreme Judicial Court of Maine. Nov., 1911.)

A landlord is under no greater duty to a
Subtenant respecting safety of the premises than
to the tenant.
[Ed. Note.—For other cases, see Landlord and
Tenant, Dec. Dig. § 162.*]

2. LANDLORD AND TENANT (§ 150*)—SAFETY OF PREMISES-LIABILITY OF LANDLORD. A lessor of a dwelling house does not impliedly warrant that it is reasonably fit for use, and is not bound to make repairs unless he has expressly agreed to do so; the principle of caveat emptor applying. [Ed. Note.—For other cases, see Landlord and #. Cent. Dig. §§ 536—557; Dec. Dig. §

3. LANDLORD AND TENANT (§ 164*) – SUBTENANTS—LANDLORD's LIABILITY. The lessor of a dwelling house is not liable to a subtenant for injury caused by plaster falling, in the absence of a showing of an agreement by the landlord to keep the premises in repair. [Ed. Note.—For other cases, see Landlord and #" Cent. Dig. §§ 630-641; Dec. Dig. §

4. LANDLORD AND TENANT (§ 169*)—DEFECTS IN PREMISES - KNOWLEDGE – EVIDENCE SUFFICIENCY. Evidence in an action by a subtenant against a landlord for injury caused by plaster falling held insufficient to show that the landlord knew of the defective condition. [Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 169.*]

5. LANDLORD AND TENANT (§ 164*) – INJURY TO SUBTENANT – LANDLORD’S LIABILITY GRATUITOUS UNDERTAKING. A subtenant, suing the lessor of premises for injury caused by plaster falling, cannot show liability under gratuitous undertaking by the landlord to repair and negligent performance of the Work, in the absence of a showing that the Subtenant Was a party to the undertaking or knew of it before the accident. [Ed. Note.—For other cases, see Landlord and #. Cent. Dig. §§ 630–641; Dec. Dig. §

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6. APPEAL AND ERROR (§ 1078*)—WAIVER OF OBJECTIONS—FAILURE TO BRIEF. Exceptions not argued in exceptant's brief are deemed waived. [Ed. Note.—For other cases, see Appeal. and Error, Cent. Dig. §§ 4256–4261; Dec. Dig. § 1078.*] Exceptions from Supreme Judicial Court, York County. Action by Ester P. Hill against Frederick A. Day and another. NonSuit, and plaintiff brings exceptions. Exceptions overruled.

Action on the case to recover damageS for personal injuries alleged to have been sustained by the plaintiff, and caused by the falling of plastering upon the plaintiff from the ceiling in the kitchen of a certain dwelling house owned by the defendant Day. Plea, the general issue. At the conclusion of the plaintiff's evidence, the presiding justice Ordered a nonsuit. To this ruling and Certain ruling excluding Certain testimony the plaintiff excepted.


Mathews & Stevens, for plaintiff. John P. Deering, for defendant Day.

KING, J. This case comes up on exceptions to an order of nonsuit, and other exceptions by plaintiff to the exclusion of teStimony. The action is to recover damages for personal injuries alleged to have been Sustained by the falling of plastering upon the plaintiff from the ceiling in the kitchen of a dwelling house owned by the defendant Day.

Exceptions to the Order of nonsuit.

The declaration alleges that the house was Occupied by Clementine R. FOSS (One of the defendants) under a contract with Day, and used by her as a dwelling house and for the letting of rooms. No evidence, however, was introduced as to any contract of tenancy between Mr. Day and Mrs. Foss. The plaintiff testified that she hired Of Mrs. FOSS a front room, With the privilege of using the kitchen for passing through to the back yard, and for some cooking and light housekeeping, and began her occupancy on November 10, 1908. On the 20th of Novemler the plaintiff, having passed from the back yard through the kitchen With Some clothes, came back into the kitchen and shut a door—presumably the door leading from the kitchen to the yard—Whereupon a portion of the ceiling plastering fell upon her, causing the injuries complained of.

[1] If it be assumed that the relation of landlord and tenant existed between Mr. Day and Mrs. FOSS With respect to the house in question, as alleged in the declaration, the fact that the plaintiff was using the kitchen by permission of Mrs. Foss would create no 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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