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owners retained the $250 paid by were to convey the premises to Hathaway.

Hathaway on or before April 20, A few days prior to the execution 1914; and if this contract was not of the agreement Hathaway con- subsequently modified, then the tracted with the petitioners for ex- owners did not agree that Hathatensive repairs and alterations upon way could charge them with rethe house, representing that he was sponsibility for his contracts; and the owner. The petitioners entered the work was not done with their upon the premises and made the re- consent within the meaning of the pairs and alterations. April 3,

3, statute, and he was not rightfully 1914, a second contract was made acting for them in procuring or by Hathaway with the petitioner furnishing such labor or material. the Roxbury Painting & Decorating Mere notice that he intended to reCompany to do additional papering pair the house, and knowledge of and painting, which work was per- the progress of the work and apformed. Work on the house was dis- preciation expressed over the imcontinued by the petitioner Duff on provements made, were not enough April 15, 1914, by the petitioner to establish a lien on the owners' Lewis on April 18, 1914, and by the estate. When an owner of land petitioner the Roxbury Painting & agrees to sell it, and allows one who Decorating Company on April 24, has agreed to buy it to take posses1914. There was evidence that Miss sion of the property, the owner does Nute was on the premises March 28, not thereby authorize such person 1914, when the work was in prog- to impose a lien on the land, unless ress, and when asked if "she want- by implication the ed to come in" said “'No,' that owner

authorized Mechanics'

lien-authority she would just walk around the purchaser to of purchaser the house," and again on April 11th contract for the re- tory contract. she visited the premises and then pair and alteration went through the building and re- of the building. As stated in Hayes marked "how beautiful the house v. Fessenden, 106 Mass. 228, at looked and what a great deal of page 230: “Their [the owners'] work was put in the house.” Hath- contract for a sale of the land to away in his answers to interroga. Fessenden, notice that he intended tories stated that “Miss Nute visit to build upon it, and knowledge of ed the place while the repairs were the progress of the work, charged going on four or five times," and them with no responsibility for it "spoke of the great change he had to anyone.'

Saunders v. Bennett, made in the appearance of the 160 Mass. 48, 39 Am. St. Rep. 456, place; she said it looked like a 35 N. E. 111; Courtemanche v. palace;" that "he employed other Blackstone Valley Street R. Co. 170 mechanics to do other work on the Mass. 50, 64 Am. St. Rep. 275, 48 house, amounting to about $1,700;" N. E. 937. and that "the work of the petition- The petitioners contend that the ers was necessary to make the house contract of sale of March 25, 1914, habitable."

was not the final agreement beUnder Rev. Laws, chap. 197, § 1, tween Hathaway and the owners; a lien may be established for labor that the owners knew that Hathaperformed and materials furnished way could not carry out this agreein the repair of a building by virtue ment, and agreed that he should of an agreement with “or by con- make the repairs and place a mortsent of the owner of such building," gage on the property, and pay them or "of a person

rightfully the purchase price out of the money acting for such owner in procuring secured by the mortgage. To supor furnishing such labor or ma- port this contention they offered the terials.” By the contract of sale evidence of Hathaway, that he dated March 25, 1914, the owners talked with Miss Nute before and

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(- Ma88. -, 183 N. E. 391.) after March 25, 1914, about the that he might live up to the terms of necessity "of raising money re- his agreement and carry through quired to purchase said estate by the deal of the property, and she explacing a mortgage thereon with pected to hear from him most any some bank," and that Miss Nute day;" that “Hathaway would have agreed “to my raising a mortgage to put the house in condition on the place, providing they were in order to get the money from the paid in full," and it was agreed bank, and he was making the re"that I would repair the property pairs." He also testified that Miss in order to raise money to pay them Nute did not tell him to cease work off in full.” “The house was unfit on the building, and that one of his for anyone to live in and we agreed workmen reported to him that a that I would put it in condition; couple of days after this interview such would allow my raising funds Miss Nute was about the premises. to pay them off in full;" that he told Clarence P. Adams, a foreman Miss Nute "about the alterations employed by the Roxbury Painting that were being made, both before & Decorating Company, testified the agreement was signed and afts that about April 11th Miss Nute erwards. ... He explained fully came to the premises and went to Miss Nute about his repairing through the building; that “she the house and putting it in suitable asked a carpenter what he was gocondition to live in, and Miss Nute ing to do with the bathroom floor," agreed with him fully as to all his and “he told her that he was waitplans, and even with a knowledge ing for the electricians to finish that he was going to obtain a mort- wiring and he would put the floor gage in the bank, that he also told down. Much of this evidence was her he "had taken it up with the denied by Miss Nute.

. She testified Five Cents Savings Bank in Boston that before the agreement of March and had obtained figures from the 25th was signed she gave the key Roxbury Decorating Company in to Hathaway to look over the premregard to decorating the place;" ises, but was unable to get it back that he first saw Miss Nute on from him; that he represented to March 10, 1914, and saw her almost her that he was a contractor and daily for over a month after that had employees who were idle and date.

asked if they could clean up the William H. Fanning, treasurer of house; that she never consented to the Roxbury Painting & Decorating his making any repairs on the house Company, testified that on April 11, and first discovered that the men 1914, he called on Miss Nute and were not Hathaway's employees wanted to know if Hathaway had when Mr. Fanning called on her. a deed of the property. She told She further testified that there was him he did not have a deed, that he no extension of the agreement and had agreed to purchase the prop- no consent that Hathaway should erty, and paid a substantial amount mortgage the premises; nor was down, and "was negotiating for a she informed or had any knowledge mortgage from the bank, in order

that he could not carry out the that he might carry through the agreement. deal.” He further testified: I The counsel for the owners “duly told her we were there doing work, objected to the admissibility of so painting, and had a contract with much of the foregoing testimony as Mr. Hathaway, two contracts, one related to the placing of a mortgage for the inside and one for the out- upon the premises by a bank, or to side.” She said she expected to hear the making of repairs or alterations from Hathaway every day, buc up upon the premises, and to communito that time he had not called on cations by the witness with Miss her; that "he was negotiating with Nute in regard to the same, and the the bank for a mortgage in order court excluded, subject to the plain

Mechanics' lien-notice of

Contract modification parol.

ery Co.

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tiff's exceptions duly saved, so much that she talked with her sister aftthereof as related to matters occur- er Fanning's visit and informed her ring prior to the signing of the con- as the work progressed is not tract, but, subject to the respond- enough to show that Mrs. Young ents' said objections and exceptions, consented to a change in the written admitted the remainder of said evi- agreement; and on dence objected to."

all the evidence she The parties could modify the was not shown to repairs-con

sent to lien. original contract by have consented to a subsequent parol any modification of the agreement,

agreement. Gilman or to have authorized anyone to & Son v. Turner Tanning Machin- make a separate and independent

Mass. —, 122 N. E. 747. agreement for her. The evidence of what was said by While one tenant in common canMiss Nute after the written con- not encumber the estate of his cotract was made tended to show that tenant (Muskeget Island Club v. the original contract was so modi. Prior, 228 Mass. 95, 117 N. E. 2), fied by agreement of Hathaway and the interest of Miss Nute could be Miss Nute; and if the jury believed conveyed or taken on execution, and this evidence they could have found a lien could be established on her inthat Hathaway was to make the re- terest in the property. We can see no pairs in order that he might secure valid objection to establishing a a mortgage on the premises and mechanics' lien on the interest of pay the owners the entire purchase one tenant in common of real estate. price in money, and that Miss Nute, See Kirby V. Tead, 13 Met. 149; by this arrangement, consented to Webber Lumber & Supply Co. v.

Hathaway's making Erickson, 216 Mass. 81, 102 N. E. the contract for the 940; Mellor v. Valentine, 3 Colo. labor performed 260, Hillburn v. O'Barr, 19 Ga. 591. and materials fur

Nor do we think it fatal to the pepurchaser. nished, within the

titioners that they have proceeded meaning of the Mechanics' Lien against both owners and have deStatute (Rev. Laws, chap. 197). scribed them as such, and in their Davis v. Humphrey, 112 Mass. 309; petition state that the labor and maCarew v. Stubbs, 155 Mass. 549, 30

terials were supplied with their conN. E. 219; Brown v. Haddock, 199

sent. There is nothing in the statMass. 480, 85 N. E. 573.

ute which prevents If this evidence showing that the written contract was qualified by a

a creditor who pe- ceeding against subsequent parol agreement were

titions to establish believed, a lien might be established

a lien against two or more tenants on the interest of Miss Nute in the

in common of real estate, from seproperty, although curing his lien upon the interest of there was no evi

the tenant who makes the contract dence to show that

or who authorizes the improvement Mrs. Young was in

to be made. The share of that tenany way indebted ant may be held for the work thus to the petitioners. She was a sister

authorized and a lien established of Miss Nute, and while the latter against it. See in this connection had control and management of the Taft v. Church, 164 Mass. 504, 41 property and collected the rents, N. E. 671; Washburn v. Burns, 34 Mrs. Young resided in another N. J. L. 18. It follows that in the city and knew nothing of the re- case of Mrs. Harriet E. Young the pairs or alterations, and made no petitioners' exceptions are overagreement with Hathaway except ruled; in the case of Miss Marietta the written agreement of March Nute they are sustained. 25th; the statement of Miss Nute So ordered.

Mechanics' lien-consent of owner to mortgage executory

-effect of pro

all owners.

Tenant in commonconsent to mechanics' lien.


Knowledge of owner of improvements or repairs, intended or in process

under orders of lessee or vendee, as “consent,” which will subject his interest to mechanics' liens.

I. Scope, 685.
II. Insufficiency of knowledge to show

a. General principles, 685.
b. Illustrative cases:
1. Improvements or repairs by

lessee, 687.

II. b-continued.

2. Improvements or repairs by

vendee, 689. C. Contrary decisions, 690. III. Consent shown by knowledge in con

nection with other facts, 691. IV. When does owner “knowingly permit”

improvements, 694.


1. Scope.

showing consent. It should, of course, This note is limited to cases arising be borne in mind that this note does under statutory provisions which not embrace questions as to the right make the right to a lien dependent on to a lien, where improvements are the owner's “consent.” It does not made by one person on the property of embrace questions as to the effect of another, unless the relation between the owner's knowledge under statutes them is that of lessor and lessee or of a different character, such as stat- vendor and vendee. utes giving liens for improvements made under contract with the owner II. Insufficiency of knowledge to show or his agent, statutes giving liens on

consent. the interest of the one "causing" the

a. General principles. improvement to be made, statutes giv

At the present time it is apparently ing liens for improvements made at the “request” of the owner, or stat- . settled in the jurisdictions where this utes expressly giving a lien in case the

question has arisen that mere knowlowner has knowledge of the improve- edge on the part of the vendor or ment unless he gives a specified no

lessor that improvements are contemtice of nonliability. A number of plated or being made by his lessee or cases under the Illinois statute, which vendee, and failure on his part to obgives a lien to anyone doing work un- ject thereto, is not such consent as der a contract with the owner or with will support a mechanics' lien against one whom the owner has authorized or his interest; and this is especially “knowingly permitted” to improve the true where the lessor or vendor would property, have, however, been re- have no right to prevent the making of ferred to, though it is possible that the the improvement, and will receive no citations on this point are not ex- benefit therefrom. haustive. The claim that a lessor or Maine.—Hanson v. News Pub. Co. vendor consented to an improvement (1902) 97 Me. 99, 53 Atl. 990; York by his lessee or vendee, so as to sub- v. Mathis (1907) 103 Me. 67, 68 Atl. ject his interest to a mechanics’ lien, 746. is almost always predicated on facts Massachusetts.-Francis v. Sayles from which it would probably be pos- (1869) 101 Mass. 435; Hayes v. Fessensible to draw the inference that the

den (1870) 106 Mass. 228; Conant v. lessor or vendor must have had knowl

Brackett (1873) 112 Mass. 18; Saundedge of the improvement. It is not the ers v. Bennett (1893) 160 Mass. 48, 39 design of this note to refer to all of

Am. St. Rep. 456, 35 N. E. 111; Courtethe cases in which that inference

manche v. Blackstone Valley Street might have been drawn, but to refer R. Co. (1898) 170 Mass. 50, 64 Am. St. only to those cases in which the knowl- Rep. 275, 48 N. E. 937; ROXBURY edge of the lessor or vendor was the PAINTING & DECORATING CO. v. NUTE fact or one of the facts relied on as (reported herewith) ante, 680.

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Missouri.—Todd v. Duncan (1880) Supp. 478, affirmed in (1900) 163 N. Y. 9 Mo. App. 417.

564, 57 N. E. 1128. New York. - De Klyn v. Gould .

To require owner to dissent to the (1901) 165 N. Y. 282, 80 Am. St. Rep. making of repairs by the tenant which 719, 59 N. E. 95; Rice v. Culver (1902) the tenant had the lawful right to 172 N. Y. 60, 64 N. E. 761, reversing make, in order to repel inference of in part (1901) 57 App. Div. 552, 68 consent, is an absurdity of which the N. Y. Supp. 24, 9 N. Y. Anno. Cas. 286; law is not guilty. McCauley v. HatBeck v. Catholic University (1902) 172

field (1894) 59 N. Y. S. R. 552, 28 N. Y. N. Y. 387, 60 L.R.A. 317, 65 N. E. 204;

Supp. 648. Consent is not a vacant or Havens v. West Side Electric Light &

neutral attitude in respect of a quesP. Co. (1892) 49 N. Y. S. R. 771, 20

tion of such material interest to the N. Y. Supp. 764, affirmed in (1894)

property owner, but is affirmative in 143 N. Y. 632, 37 N. E. 827; McCauley

its nature, and should not be implied v. Hatfield (1894) 59 N. Y. S. R. 552,

contrary to the obvious truth unless, 28 N. Y. Supp. 648; Vosseller v. Sla

upon equitable principles, the owner

should be estopped from asserting the ter (1898) 25 App. Div. 368, 49 N. Y.

truth. De Klyn v. Gould (1901) 165 Supp. 478, affirmed in (1900) 163 N. Y.

N. Y. 282, 80 Am. St. Rep. 719, 59 N. E. 564, 57 N. E. 1128; Sunshine v. Mor

95; Eichler v. Warner (1905) 46 Misc. gan (1902) 39 Misc. 778, 81 N. Y.

246, 91 N. Y. Supp. 793; Clark v. North Supp. 278; Eichler v. Warner (1905)

(1907) 131 Wis. 599, 11 L.R.A.(N.S.) 46 Misc. 246, 91 N. Y. Supp. 793; Gar- 764, 111 N. W.681, 11 Ann. Cas. 1080. ber v. Spivak (1909) 65 Misc. 37, 119 An owner must be either an affirmaN. Y. Supp. 269.

tive factor in procuring the improveWisconsin.-Clark v. North (1907) ment to be made, or, having possession 131 Wis. 599, 11 L.R.A.(N.S.) 764, 111 and control of the premises, must asN. W. 681, 11 Ann. Cas. 1080.

sent to the improvement in the exCanada. Graham Williams pectation that he will reap the benefit (1884) 8 Ont. Rep. 478, affirmed in of it. Rice v. Culver (1902) 172 N. Y. (1885) 9 Ont. Rep. 458; Gearing v.

60, 64 N. E. 761, reversing in part Robinson (1900) 27 Ont. App. Rep.

(1901) 57 App. Div. 552, 68 N. Y. 364; Eddy Co. v. Chamberlain (1917)

Supp. 24, 9 N. Y. Anno. Cas. 286; - N.B. - 37 D. L. R. 711.

Garber v. Spivak (1909) 65 Misc. 37, Consent, within the meaning of the

119 N. Y. Supp. 269.

Consent means the unity of opinion; statute, means conduct expressive of consent. Saunders v. Bennett (1893)

the accord of minds; to think alike;

to be of one mind. It involves the 160 Mass. 48, 39 Am. St. Rep. 456, 35 N. E. 111.

presence of two or more persons, for

without at least two persons there It implies a power of choice,-a

cannot be a unity of opinion or an acpower to give or withhold consent;

cord of mind, or any thinking alike. and where a vendor or lessor has no

A statute using the words "by the conpower to require the vendee or lessee

sent of the owner of the land” means to build, alter, and repair, and no power to prevent him from doing so, his in

that the person rendering the service terest cannot be charged with a lien

or furnishing the material and the merely because, knowing that the

owner of the land on which the buildwork is to be done, and is being done,

ing stands must be of one mind in rehe does not try to stop what he has

spect to it. Clark v. North (1907) 131 no power to prevent; especially where

Wis. 599, 11 L.R.A.(N.S.) 764, 111 N. he will receive no ultimate benefit

W. 681, 11 Ann. Cas.. 1080, quoting from the improvement. Havens v. West

from Huntley v. Holt, 58 Conn. 445, Side Electric Light & P. Co. (1892) 9 L.R.A. 111, 20 Atl. 469. 49 N. Y. S. R. 771, 20 N. Y. Supp. Under a statute giving a lien for 764, affirmed in (1894) 143 N. Y. 632, work done at the request of the owner, 37 N. E. 827; Vosseller v. Slater and on his credit, or on his behalf, or (1898) 25 App. Div. 368, 49 N. Y. with his privity or consent, or for his

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