liens should exist or be claimed for any labor or materials furnished by the contractor, or others by hin employed, will not bar a laborer and material man's lien who has not assented to it, although he introduces the contract in evidence to prove the owner's consent.

(Official.)

Exceptions from supreme judicial court, Hancock county.

Action by Hiram M. Norton against John E. Clark to enforce a mechanic's lien on realty. Plaintiff had judgment, and defendant brings exceptions, and moves for a new trial. Motion and exceptions overruled.

The suit was brought by the party furnishing labor and materials against the builder or contractor, who is in insolvency, and the building and land on which it stands.

The presiding justice, in his charge to the jury, among other things, instructed them as fellows, viz.:

"I instruct you that when the owner of the land and buildings erected contracts with the builder, as in the present case, to construct a house upon the owner's land, and the builder employs workmen and contracts for materials entering into the construction of the house, the consent of the owner of such building may properly be implied from the contract under which the house was built." Referring to the stipulation as to liens in the written contract between the builder and the owners, he said: "I instruct you that other parties having no knowledge of the terms of that contract would not be bound by its terms or stipulations, although John E. Clark [the contractor] might be bound by this in relation to enforcement of his lien. * * * I instruct you, from the evidence in this case bearing upon that question, that if Hiram M. Norton [the plaintiff] is otherwise entitled to a lien upon the building, he is not a subcontractor in such a way as to prevent him from maintaining a lien for the labor or materials furnished by him entering into the construction of this cottage and appurtenances."

The jury returned a verdict for the plaintiff, and the defendant excepted to the foregoing instructions. He also filed a motion

for a new trial.

Deasy & Higgins, for plaintiff. Bedford E. Tracy, for owner.

EMERY, J. Under our statute of liens (Rev. St. c. 91) the claimant of a lien for labor or material performed or furnished in erecting a building must establish as a proposition of fact that he performed or furnished the labor or material, either by virtue of a contract with the owner of the building, or by the consent of such owner. In these cases before us, the plaintiff sought to establish the alternative fact, viz. that the labor and materials were performed and furnished by the consent of the owner.

He performed and furnished the labor and material at the request of one Clark, the defendant. At the trial, as tending to estab

lish the fact of the owner's consent thereto, he offered in evidence a written contract between the owner and Clark, providing for the erection of the building by Clark for a gross price, Clark to procure all the necessary labor and material. To this evidence the owner objected, but it was admitted, and he excepted.

The fact that such a contract was made clearly tends to prove that the owner consented to the furnishing of labor and materials by others at Clark's procuration. He could not reasonably have expected Clark to personally perform all the labor, and have on hand all the materials. He must have anticipated that Clark would procure much of the labor and materials from others. Hence his consent thereto may be reasonably inferred from his making such a contract.

The written contract, when admitted and read in evidence, disclosed a stipulation by Clark that no liens should exist or be claimed for any labor or materials furnished by Clark or by others employed by him. The owner claimed that this stipulation barred the plaintiff's lien, though he had no previous knowledge of it, he having acted under Clark, and having put in the contract as part of his evidence. The court ruled otherwise, and the owner excepted.

The argument is that, having put the contract in evidence, the plaintiff is bound by its terms. Not so. The plaintiff did not put it in as his contract, but only as a written admission by the owner tending to prove consent by him. The plaintiff, having no knowledge of the stipulation, cannot be deprived by it of any rights he had acquired by contract or by statute, even though he prove it as a circumstance to establish such rights. Neither does the fact that the plaintiff was in Clark's employ make him subject to any stipulations Clark might choose to make with others. This particular stipulation, like all other stipulations, binds only those who made it or assented to it. The plaintiff did neither.

Motion and exceptions overruled.

PETERS, C. J., and VIRGIN, LIBBEY, FOSTER, and WHITEHOUSE, JJ., concurred.

(85 Me. 362)

LIBBY v. DICKEY et al. (Supreme Judicial Court of Maine. March 31, 1893.)

VENDOR AND PURCHASER ACTION FOR PRICE DEFICIT IN QUANTITY-"MORE OR LESS. " Upon the trial of the issue of fraudulent representations as to the quantity of land, that induced a purchase, an instruction to the jury, "a deficiency of a few acres, perhaps a dozen, or even fifty, acres, in such a large parcel as eight hundred acres, more or less, might be allowed by those words," (more or less,) is erroneous, but not as the construction of a deed purporting to convey "eight hundred acres, more or less."

(Official.)

or false. Harding v. Randall, 15 Me. 332; Hammatt v. Emerson, 27 Me. 308.

The plaintiff makes no formal complaint against the verdict. The defendants, how ́ever, complain that the jury did not make a sufficient allowance for the 50 per cent. deficiency of land; that, as they had received only one-half of the land bargained for, the plaintiff should receive only one-half of the consideration, but, as the defendants had already paid more than one-half, they ought not pay any more. And the defendants undertake to trace their cause of grievance to an instruction in relation to the number of acres which the words "more or less" might properly be allowed to cover.

After stating quite fully the meaning of that phrase, as the same is laid down in cases of acknowledged authority, the judge then added what the defendants claim was erroneous, and to their disadvantage, viz.: "A deficiency of a few acres, perhaps a dozen, or even fifty, acres, in such a large parcel as eight hundred acres, more or less, might be allowed by these words."

Considered as a construction of the deed, the instruction, as an illustration, is sustained by a very large number of authorities. The subject-matter has often arisen, and created much discussion in the books. Chancellor Kent, upon authorities cited, declares the general rule to be, "when it appears by definite boundaries, or by words of qualification, as 'more or less,' or words of like import, that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case." 4 Kent, Comm. *467. Judge Story entertained a like view. Stebbins v. Eddy, 4 Mason, 414. See, also, 1 Sugd. Vend. (Perk. Ed.) §§ 3, 489, and notes; Pierce v. Faunce, 37 Me. 63; Hall v. Mayhew, 15 Md. 551; Smith v. Evans, 6 Bin. 102.

When the difference between the actual and the stated quantity, thus qualified, is so great as to naturally raise the presumption of fraud or gross mistake, the purchaser has his remedy. Same cases.

therefore, that the instruction, if confined to the construction of the deed, can afford no legal cause of complaint to the defendants.

But the case, as presented to the jury, was not based upon a construction of the deed, but upon fraudulent representations proved by oral testimony, which was undoubtedly admissible. Society v. Smith, 54 Md. 187, 202. The jury found that the plaintiff unqualifiedly assured the defendants that the premises comprised 800 acres, and that, relying upon that assurance, they purchased. If the same unqualified statement had been made in the deed, the defendants would undoubtedly have been entitled to a remedy for the material difference, for quantity would then be regarded as a material consideration, entering into the essence of the contract. Marbury v. Stonestreet, 1 Md. 147. Why should fraud place him in any better condition?

The charge, which is made a part of the exceptions, shows that the instruction complained of was not intended to be confined to a construction of the deed, but was expressly made applicable to the case, as presented. The judge said: "However, if you should allow a reasonable margin, would seven hundred and fifty acres be an unreasonable amount, if you should conclude there was misrepresentation, as a basis upon which to calculate, four hundred acres having been proved to be the amount that was actually conveyed? If seven hundred and fifty would be a reasonable basis, why, then, you should deduct the four hundred acres from the seven hundred and fifty, and compute the damages upon that." We think the instruction, when applied to the fraudulent representation, was erroneous.

Exceptions sustained.

PETERS, C. J., and WALTON, LIBBEY, FOSTER, and HASKELL, JJ., concurred.

(85 Me. 368) ATKINSON v. PEOPLE'S NAT. BANK OF WATERVILLE.

(Supreme Judicial Court of Maine.

1893.)

WRIT OF ERROR-RECORD.

March 31,

Where the plaintiff in a writ of error submits the case to the law court upon anything less than a full transcript of the extended, unabbreviated record, the writ of error will be dismissed. (Official.)

Error from superior court, Kennebec county.

Action by the People's National Bank of Waterville against William D. Atkinson. Plaintiff had judgment, and, to reverse the same, defendant brought error. Writ dismissed.

court, and the proceedings are void, having no legal foundation whatever; second, the court rendering said judgment had no jurisdiction to render the same, the process upon which it was rendered being void for want of a legal writ, said writ not having been signed by the clerk of the court which rendered said judgment.

The original writ bears date January 5, 1882, and purported to be signed by W. M. Stratton, who, defendant in error admitted, was not clerk at that time, and whose term of office had expired more than a year previously.

The following docket entries in the original action were offered in evidence, subject to the plaintiff's objections:

EMERY, J. At common law the usual writ of error (coram vobis) issued out of the writ office in chancery to the court whose record in the particular case was to be examined, and commanded that court to send the record and process in the case, with all things touching them, (and also to return the writ itself,) into some other court, usually the king's bench, for examination and judgment. Thus the writ partook of a dual nature. It operated as a writ of certiorari to the inferior court to send up its record and proceedings in the case, and it also operated as a commission to the superior court to inquire into and determine the legality of such record and proceedings.

After the return of the writ, with the record and proceedings of the inferior court, into the superior court, the latter court issued its own writ of scire facias to the defendant in error. Upon the return of this writ of scire facias, the pleadings were made. The plaintiff assigned errors, and the defendant pleaded in nullo est erratum, or some other appropriate plea.

If the return made upon the original writ of error did not include the entire, completed record and proceedings in the case, the superior court, upon the suggestion of either party, would issue a special writ in the nature of a writ of certiorari to the inferior court to send up the omitted portions. The superior court would also issue this special

writ of its own motion in order to supply omissions, and obtain enough to show a valid record. The pleadings did not properly begin until the entire, completed record had been obtained.

The

Under our system of procedure in Maine the original writ of error and all the special writs of certiorari and also the special assignments of errors are dispensed with. proceedings are begun by the writ of scire facias from the supreme judicial court, in which writ are specified the errors relied upon. Instead of the writ of certiorari to the court to send up its record and proceedings, the parties procure transcripts of the record and proceedings, and introduce them as evidence before the court which is to examine them. Rev. St. c. 102, §§ 7, 8. The court, however, has unquestionably the same right as at common law to insist upon a full transcript of the complete record and all the proceedings being produced before hearing argument and rendering judgment. It may refuse to proceed until one party or the other produces such transcript.

In this case the transcript is very fragmentary. The plaintiff offered only a transcript of an "abbreviated record," such as is named in section 11, c. 79, Rev. St., together with a copy of the original process and the officer's return thereon. The defendant offered only a copy of the docket entries and a copy of the pleas. We have repeatedly held that the court will not pronounce a judgment erroneous where only the abbreviated record permitted in section 11, C. 79, Rev. St., is produced. Tyler v. Erskine, 78 Me. 91, 2 Atl. Rep. 845; Mill Co. v. Merrill, 78 Me. 107, 2 Atl. Rep. 882. That abbreviation may suffice as evidence of a judgment where it is only sought to prove its existence. Where, however, it is sought to re-examine the proceedings, and reverse the judgment for error, there must be a full unabridged record made up, so that all the proceedings may be seen. Such a record, according to Blackstone, comprises "the original writ and summons, all the pleadings, the declaration, view, or oyer prayed, the imparlances, plea, replication, rejoinder, continuances, and whatever other proceedings have been had, all entered verbatim on the roll; also the issue or demurrer and joinder therein." 3 Bl. Comm. 317.

Either party can require the clerk of the court to extend the record without abbreviation, and give him a transcript of such complete record.

If such a record were made and presented by transcript in this case, it may appear that the matters specified as errors in the original process and the return thereon were completely waived and cured by the defendant's appearance and pleading directly in bar to the declaration without interposing any plea in abatement or motion to dismiss. We think, therefore, we should not pronounce judgment upon the record until the

ROGERS v. DEXTER & P. R. CO. (Supreme Judicial Court of Maine. April 1, 1893.)

RAILROAD COMPANIES-CONSTRUCTION OF ROADLIABILITY TO SUBCONTRACTOR.

The statute provision (Rev. St. c. 51, 141) which imposes a liability on railroad corporations to pay for the work of laborers employed in constructing their roads does not apply to the labor of a subcontractor, personally expended, with that of a crew employed by him, upon a section of a railroad which he has contracted to build. (Official.)

Report from supreme judicial court, Piscataquis county.

Action by Arthur D. Rogers against the Dexter & Piscataquis Railroad Company. Heard on report. Judgment for defendant.

H. Hudson and J. S. Williams, for plaintiff. J. B. Peaks, for defendant.

PETERS, C. J. The defendant railroad company contracted with Brown Bros. & Co. for the entire construction of its railroad. Brown Bros. & Co. contracted with one Tucker for a certain amount of the grubbing and filling in such construction. Tucker contract ed with the plaintiff for a certain amount of the grubbing (embraced in his contract with Brown Bros. & Co.) at a fixed price, per square yard. The plaintiff employed other men, and labored personally with them, in doing the grubbing he had contracted to have done. Tucker did not pay the plaintiff, as provided in the contract, and the plaintiff has now brought this action against the railroad company to recover, not the contract price, but only the amount of his personal labor in such grubbing. He bases his claim to recover on Rev. St. c. 51, § 141, which reads as follows:

"Every railroad company, in making contracts for the building of its road, shall require sufficient security from the contractors for the payment of all labor thereafter performed in constructing the road by persons in their employment; and such company is liable to the laborers employed, for labor actually performed on the road, if they, within twenty days after the completion of such labor, in writing, notify its treasurer that they have not been paid by the contractors. But such liability terminates unless the lav.27a.no.5-17

borer commences an action against the company, within six months after giving such notice."

This statute was evidently intended, not for the benefit of contractors, but for the benefit of laborers. The railroad company is made liable to laborers only. The question, therefore, is whether one who contracts to do a certain specific portion of the work of construction of a railroad, and personally labors in the performance of his contract, along with others hired by him for the same purpose, is a "laborer employed," within the meaning of the statute.

Etymologically, the word "laborer" may include any person who performs physical or mental labor under any circumstances, but its popular meaning is much more limited. The farmer toiling on his own farm, the blacksmith working in his own shop, the tailor making clothes for his own customers, is not called a laborer. One who performs physical labor, however severe, in his own service or business, is not a laborer, in the common business sense. A contractor, who takes the chance of profit or loss, is not a laborer in that sense.

In the language of the business world, a laborer is one who labors, with his physical powers, in the service and under the direction of another, for fixed wages. This is the common meaning of the word, and hence its meaning in the statute.

The plaintiff in this case performed his labor in his own business. He was responsible only for the performance of his contract.

The means for such performance were of his own choice. He need not personally have performed physical labor at all. He could have employed all, as well as a part, of the necessary labor. What physical labor he did perform was not for wages, but to reduce the expenses, and increase the hoped-for profits, of his contract. He clearly was not a laborer, within the common and statute meaning of the term.

Authorities are not wanting to sustain this interpretation of the statute. The word "laborer" in similar statutes has received a similar interpretation in other jurisdictions, (Aiken v. Wasson, 24 N. Y. 482; Balch v. Railroad Co., 46 N. Y. 521; Vane v. Newcombe, 132 U. S. 220, 10 Sup. Ct. Rep. 60; Weymouth v. Sanborn, 43 N. H. 171;) also in the China treaty, (In re Ho King, 14 Fed. Rep. 724.)

It is urged that the statute should be liberally construed, being remedial, and intended to prevent hardships. This may be so, as to the class to which it clearly relates. It should not be stretched, however, to include a class not within the common meaning of its language. Lord v. Woodward, 42 Me. 497. Judgment for defendant.

VIRGIN, LIBBEY, FOSTER, HASKELL, and WHITEHOUSE, JJ., concurred.