The Portland daily press., 1898-05-28

In an action to recover damages caused
by an alleged defective way in the city OF
Lewiston. the defect complained OF was
that tho sidewalks at the junction OF MlalD
and Park streets were not on the saiue
level. The Main street walk was OF prick,
constructed about month prior to the
accident, with plank at the outside OF
the walk at the junction, and SET upon
edge, with the top Of the plank flush with
the surface of the walk. for the purpose
of retaining the brick in place The Park
| street walk was of earth with ashes placed
next to the brick sidewalk and extenoln9
back on the Park street sidewalk ABOUT
six feet.
This latter sidewalk at the junotion
was slightly lower than the surface OF the
brick sidewalk. The difference IN Lever
varied somewhat because the dirt slae-
walk was rounding, being higher In the
middle, and.on one side, than the other
It was upon one side, and in the middle,
from one to two inches lower than the
Main street walk, and upon the extreme
outside the Park street walk was i've and
one-half inches lower than the top of the
plank. Two feet in from this extreme out
side the difference in level was but two
and three-fourths inches, the whole
width being about six feet
Held; that the condition of the street
above described is not defect within the
/ .-~SssAAAH6 ~ oAA0 AAAGAW0y cVuOuuOt 0AcC3
that persons unacquainted with the
locality ought to anticipate that. at the
junction of two sidewalks in such place,
there might be such condition in the
sidewalks.
Where in such an action the statute re-
quires the person injured to set forth his
claim for damages, it does not mean that
the damages must be specified or that the
amount claimed must necessarily be
stated. The notice is sufficient in this
respect II the sufferer sets forth in his
notice that he makes claim for damages.
Sawyer VS.. Naples, GO Maine, 453, and
Lord VS.. Saco, 81 Maine, 221, considered
. ri discussed.
Judgment for the defendant.
Cumberland, S.
Horace Farnham in equity, VS.. Arthur
N. Richardson ct ais
Rescript by Wiswell, 1.-THE validity
of lien claim of persons who furnish
materials for erecting and constructing
houses or buildings as regulated by the
statutes of the state, does not depend up
on the amount or value of the material
last furnished. provided all the other con-
ditions necessary to the maintenance OF
the lien exist.
1t is undoubtedly true that the trihing
character of the labor last performed or
material last furnished may often throw
more or less light upon the question
whether the service was at the time In
tended to be gratuitous and was only
afterwards relied upon to save lien
which would have otherwise expired, or
not. But when o lien claimant furnishes
material for the construction of build
| ing by virtue of q contract with person
than the owner, but with the knowledge
and consent of the owner, the lien given
bin by statute will not be dissolved II he
files the required statement in the clerks
office within forty days after he ceases to
furnish materials.
land, contracted with the defendant,
Richardson, for the construction Of a
building on the lot. The plaintiff fur
nished materials for the building upon
| the order of Richardson, the last OF which
with the following exception, was upon
September -, 1895; and filed his claim IN
the clerks office upon November 8, 1896.
But upon October |, 1926, tho plaintiff
| furnished door for the building upon
exchanged for another previously de-
livered by the plaintiff but OF less value
and that did not fit the frame. The ex.
change was internally made upon the
order of the defendant Richardson and
for mis- convenience only; and the plaintiff
credited him upon his books with the
door returned at the price originally
charged for the door delivered in ex
change, So. 90, or fifteen cents more thar
| for the door returned.
Held; that this exchange was not in
tended as gratuity; nor was the charge
an afterthought made for the purpose Of
extending the time within which the
claimant could file his lien claim for the
materials previously furnished. There
was no intimation that the charge for the
door furnished was too much, nor thai
the credit for the one returned was toe
little. And it was not suggested that
the necessity for the change was caused
by any fault of the plaintiff, SO that M
charge whatever should be made.
Held that the plaintiffs lien should
take precedence of two mortgages upor
the property, one dated September 19, ant
the other, October /, 1895, but both re-
corded upon the latter day, because al
the materials were furnished by virtue Of
a contract made with the defendan
J Richardson, the builder, with the knowl
] edge and consent of the owners befor
October first.
Decree reversed. New decree in accord
! ance with this opinion.