The exceptions in this case are to the refusal of the court to give certain instructions requested; and no exceptions were taken to the charge of the presiding judge.
*4341. The first instruction requested was properly refused. A lien is given by the Pub. Sts. c. 191, § 1, to a person performing labor or furnishing materials which are actually used in the construction of a building, if such person acts by virtue of an agreement with the owner of the land, or by his consent, or the consent of any person having authority from or rightfully acting for such owner. The lien does not depend upon the terms of the contract between the owner of the land and the original contractor. Bowen v. Phinney, 162 Mass. 593. Borden v. Mercer, 163 Mass. 7.
2. The question whether there was a variance between the certificate, which states the contract to have been made between the petitioners and Harris, and the proof, depends upon the effect to be given to a conversation which took place between one of the petitioners and the respondent, after the failure of Harris and before the work was completed. This was a question for the jury to decide. We do not think they were bound to say, from the evidence before them, that the old contract was abandoned, and a new one entered into with the respondent.
3. The third request for instructions was properly refused. There was abundant evidence of consent on the part of the respondent. Gannon v. Shepard, 156 Mass. 355. Whether he knew, or did not know, that the contract had been awarded without the written consent of the architect, was immaterial.
4. The contract under which the work was done was entered into by one of the petitioners in behalf of his firm. . It is of no consequence that the respondent did not know that he was acting in behalf of his firm. The firm did the work, and the respondent knew that the persons composing the firm were doing it. The petitioner who made the agreement was acting as an agent for undisclosed principals. The agreement, in point of law, was made with the firm, and the members of it are the proper parties to enforce it. Lindl. Part. 275. Gage v. Rollins, 10 Met. 348, 354. Barry v. Page, 10 Gray, 398.
5. The fifth and sixth requests relate to waiver. In the view which we take of the first request, these are immaterial.
6. The seventh and eighth requests are disposed of by what we have already said.
Exceptions overruled.