James W. Simpson vs. Willard Dalrymple & others, 11 Cush. 308

Metcalf, J. The court are of opinion that this petition is defective, and that the demurrer to it must be sustained. The Rev.

Sts. c. 117, § 6, require that a petition to enforce the lien given to the person who shall, by contract with the owner of any piece of land, furnish labor or materials for erecting or repairing any building, or the appurtenances of any building, on such land, " shall contain a brief statement of the contract on which it is founded, and of the amount due thereon, with •a description of the premises which are subject to the lien, and all .other material facts and circumstances.” And the St. of 1851, c. 343, which gives a lien to any person who shall actually perform labor in erecting or repairing any building, by virtue of any contract with the owner thereof, or other person who has contracted with such owner for erecting, altering, or repairing such building, provides by

section 4, that such lien may be enforced by petition, in the manner provided by the fifth and subsequent sections of the Rev. Sts. c. 117. The petition under this last statute must therefore, like a petition under the revised statutes, contain a brief statement of the contract on which it is founded. But the present petition merely states that the petitioner, by the request of Wm.

Brag-don, and at his instance, and under his direction and supervision, and by virtue of a contract with him, actually performed labor in erecting three brick dwelling-houses in Charlestown, and that said labor was performed by virtue of said contract and agreement with said Bragdon, who was the contractor for building said houses, and the supposed owner thereof; that the petitioner labored on said houses one hundred and twenty-one days, and that his labor was reasonably worth $2.00 per day.

This is not a statement of the contract with the contractor; it is merely a statement that there was a contract of some ldnd, express or implied, under which the petitioner labored for a certain number of days. The petition ought to have shown what that contract was. Again: The petition is wrong in stating that the contract, whatever it was, was made with said Bragdon as the contractor for building the houses, and the supposed owner thereof.

Under St. 1851, c. 343, the words “ owner ” and “ contractor ” denote two persons; the contractor is he who makes a contract with the owner, and not he who makes sub-contracts with the workmen. The petition is bad for the first and third reasons assigned for the demurrer. The other reasons assigned seem to us to be insufficient to sustain the demurrer. Petition adjudged bad.