Opinion
No. 4784.
Argued October 7, 1959.
Decided November 3, 1959.
1. A mortgage takes precedence over a subsequent lien for labor and materials furnished in construction of a building upon the mortgaged premises.
2. Evidence that the mortgagee agreed to pay the plaintiff for labor rendered to the mortgagors while they were in possession and for subsequent labor to complete the building on the mortgaged premises after the mortgagors abandoned the premises warranted a verdict for the plaintiff against the mortgagee for the value of all the services rendered.
ACTION, against Charles T. and Elma C. Davis, as owners, and against Grossman's of New Hampshire, Inc., as mortgagee, to secure a mechanic's lien and recover for labor performed and materials furnished pursuant to an oral contract with the owners in part and Grossman's in part.
The plaintiff in 1950 sold a parcel of land adjoining his farm to Charles T. and Elma C. Davis. Subsequently on May 26, 1954, they entered into a contract with L. Grossman, Sons, Inc., an affiliate of Grossman's of New Hampshire, Inc., to furnish certain building material to erect a dwelling on this lot. On the same day they signed a note in the amount of $6,000 secured by a mortgage of even date on the real estate.
The plaintiff agreed to assist the Davises in the erection of the building with the understanding that Mr. Davis would repay by performing work of equal value on the plaintiff's farm. The plaintiff was never paid for this work and in January, 1956, the Davises abandoned the property and moved to California, leaving plaintiff in full charge of the property and giving him physical possession of their deed and other papers to the premises.
The plaintiff thereafter notified Grossman's and requested they contact him so that the matter could be staightened [straightened] out. After talking with the defendant's representative the plaintiff completed the building early in October, 1956. Approximately two weeks thereafter the defendant foreclosed its power of sale mortgage. Other pertinent facts appear in the opinion. Trial by the Court (Sullivan, J.), resulted in a verdict for the plaintiff in the amount of $1,497.62.
The exceptions of the defendant to the ruling of the Court on certain evidentiary questions and to the denial of its motion for a nonsuit and directed verdict were reserved and transferred.
James W. Doherty (by brief and orally), for the plaintiff.
Nighswander, Lord Bownes (Mr. Lord orally), for defendant Grossman's of New Hampshire, Inc.
In the absence of any agreement with the plaintiff the defendant's mortgage would take precedence over any claim the plaintiff may have for work and labor performed and materials furnished. Peaslee v. Evans, 82 N.H. 313.
The defendant contends there is no evidence in the record to establish any agreement by it to pay the plaintiff, and if any evidence should exist "the contrary evidence is so overwhelming that it was error to deny the motion for a directed verdict." While the state of the evidence was such that reasonable men might well differ as to the weight thereof we are unable to adopt the defendant's view.
It could be found that defendant's agent Therrien, upon being advised of the abandonment of the property by the Davises, visited the plaintiff, inspected the property, examined the plaintiff's records of work done for the Davises and agreed that if the plaintiff would complete the house he would be paid "the money that was due . . . from the Davises and the labor . . . to complete the house from that point on."
Subsequently in March and June certain materials to complete the house were delivered on the premises by the defendant. The plaintiff completed the work by early October, 1956. This evidence was sufficient to support the Court's verdict.
Judgment on the verdict.
All concurred.