It appeared in Martin v. Stewart, 204 Mass. 122, upon the auditor’s report, which with a copy of the petitioner’s statement of lien was all the evidence introduced at the trial, that the petitioner contracted with the respondent Stewart to perform all the carpenter work on the buildings except the laying of floors, and to furnish the lumber for the stair carriages for an entire price. The petitioner performed the contract, and did certain extra work, but as the statement of lien contained no reference to anything except labor, it was decided that no lien attached to the land, and the petition could not be maintained.
But the evidence at the second trial was materially different. It tended to show that the original contract, instead of being for labor and materials, was for labor only, and the jury found in answer to the sixth issue that the lumber for the stair carriages was not included. If the testimony was conflicting, the credibility of the witnesses was for the jury, and the positive statements of the petitioner, and of Stewart, who each testified as to the terms of the contract, cannot be disregarded even if inconsistent with their former testimony and the auditor’s report. It was a question of fact which has been determined against the respondents, and the answer which settles the principal questions raised by the exceptions, having been warranted by the evidence, must stand.
The third issue called for an answer as to the amount due for labor, and, the statement of lien not having set forth the number of days, although giving the dates, the respondents asked for a ruling that this question could not properly be answered by the jury. But it is only where labor is performed or furnished under an entire contract, which includes both labor and materials, that the number of days must be specified in the statement. R. L. c. 197, § 6. If as in the present case the lien is for the contract price, for which the parties agreed that the work should be done, it is not necessary to particularize by stating the number of days taken in its performance. Patrick v. Smith, 120 Mass. 510, 513. We find no error of law at the trial.
Exceptions overruled.