37 Pa. Super. 363 | Pa. Super. Ct. | 1908
Opinion by
The use plaintiff, Warren Brothers Company, was incorporated under the laws of West Virginia, and in 1902 filed with the secretary of the commonwealth of Pennsylvania a statement in the form prescribed by the Act of April 22, 1874, P. L. 108,
We -have said that the pavement was accepted by the city. It is claimed that the evidence admitted to establish that fact was not competent. The evidence consisted (a) of a book in which resolutions of councils are recorded, and in which appears
The next question to be considered is thus stated by the appellant’s counsel: “In the absence of proof on the part of the plaintiff, to the allegations of the defendant in the affidavit and . supplemental affidavit of defense, that the city engineer did not make a certificate stating the time of the completion of the improvement and file the same with the city clerk, and that no
One of the requirements of the statute is that, in other than tax claims, the claim shall set forth “the kind and character of the work done” for which the claim is filed. The claim in this case sets forth that the work for which it was filed was done under and by virtue of the Act of May 23, 1889, P. L. 277, the Act of May 16, 1891, P. L. 75, and their supplements, and a clearly identified city ordinance, and that the kind and character of the work was “the paving of North Seventh street on the east side thereof in front of the above-described property " and these averments are followed by a statement of the number of square yards of paving and the cost per yard. The materials of which the pavement was constructed are not set forth, it is true, but the statute does not expressly require this to be done, and we are not convinced that such requirement is to be implied. It is essential, however, that the claim should show that the kind and character of the work were such as bring it within the general class of municipal improvements, to defray the cost of which assessments may be made upon and claims therefor may be filed against abutting properties, and distinguish it from all other species of municipal improvements of the same general class. If the statute recognized different kinds of paving, depending upon the materials used, and its provisions re
The only remaining question that need be noticed is thus stated by appellant’s counsel. “Can there be a recovery on scire facias on a municipal claim filed, which was not signed by the solicitor of the municipality nor by any executive officer thereof, and not accompanied by an affidavit of any of the said officers, nor by an officer or agent of the use plaintiff?” The facts out of which this question arises are as follows: The claim is signed “Dillinger & Schwartz, solicitors of the use plaintiffs,” and the affidavit accompanying it is as follows: “Dallas Dillinger, Jr., Resident Cashier, being duly sworn according to law deposes and says that the facts above set forth are true and correct to the best of his knowledge, information and belief.” On the trial of the case Dallas Dillinger, Jr., being called as a witness on behalf of the plaintiff, testified that he was never in the employ of Warren Brothers Company, but was in the employ of the Standard Bitulithic Company (which company, it is alleged in the affidavit of defense, paved the street under a subcontract with Warren Brothers Company), and that the office where he was employed, although having upon it the sign Warren Brothers Company, was, as far as he knew, the office of the Standard Bitulithic Company. He further testified that he served notices stamped with the name of Warren Brothers Company, and that he prepared the claim but did not file it; but neither of these acts, nor any other act testified to by him, repels or modifies the effect of his unequivocal testimony that he was not in the employ of the use plaintiff but was in the employ of the other company. There is no escape from the conclusion that- he was not the solicitor, or the chief execu
First, as to the signing. Inasmuch as the word “claimant,” as used in the act of 1901, is defined in the first section to mean “the plaintiff or use plaintiff in whose favor the claim is filed as a lien,” it would seem that the signing of a claim by the solicitor or chief executive officer of the contractor and use plaintiff would be a sufficient compliance with the first clause of sec. 11 hereinafter quoted. And as it does not appear in the evidence or otherwise that Dallas Dillinger, Jr., who made the affidavit, was the same person whose name is signed to the claim, and as there is no other evidence tending to overcome the prima facie presumption that Dillinger & Schwartz were the solicitors of the use plaintiff, we conclude that there is no irregularity in the signing of the claim that would invalidate it. Further, Donahoo v. Scott, 12 Pa. 45, and Rodney v. City to use of Young, 3 Walk. 505, furnish some support to the position taken by the appellee’s counsel and the learned judge below, that the filing of the claim by the use plaintiff and the issuing of a scire facias thereon was a ratification of the act of the persons whose names are signed to the claim.
Second, as to the authority of Dallas Dillinger, Jr., to make the affidavit required by sec. 11 of the act. The section, after declaring what the claim must'set forth, concludes as follows: “Said claim must be signed by the solicitor or chief executive officer of the claimant; and in the case of a use plaintiff must be accompanied by an affidavit that the facts therein set forth are true to the best of his knowledge, information and belief.” If the word “his” could be construed to mean the same as if the words “the affiant’s” had been used, there would be little room for doubt that an affidavit made by any person cognizant of the facts would be good. But this would be opposed not only to the grammatical construction of the sentence but to the construction arrived at by a consideration of the purpose of the provision as manifested by the context and the subject-matter. If the word “his” must be construed to relate to some person already mentioned, as we think it must, the only person authorized to make the required affidavit is the solicitor or chief
It is suggested by the learned judge below that the affiant was cognizant of the facts, and that the filing of the lien and the issuing of a scire facias thereon by the use plaintiff constituted such a ratification of his acts as cured this defect. This assumes that the only person interested in having the affidavit made by the particular person designated in the statute is the claimant. But he is not the only person interested. The ex parte filing of a claim, which shall at once become a lien on the defendant’s property, and be conclusive or even prima facie evidence of the facts therein averred upon the trial of a scire facias, materially affects the defendant’s rights. The right to file such claim with such effect is qualified by the provision that it shall be accompanied by an affidavit of a person having certain designated qualifications, and this provision, judging from its nature, was intended for the defendant’s protection. It is a right conceded to the property owner by the statute, which it is not within the power of the claimant to deprive him of by ratification or waiver. But, unquestionably, the defendant could waive it, and, we think, did waive it. It will be observed upon a reading of the affidavit that it did not purport to be made by the solicitor or chief executive officer of the claimant, but by the “ resident cashier,” of whom is not stated. This was sufficient to affect the defendant with notice that it was not made by the person designated by the statute. He did not take advantage of the defect by demurrer or motion to strike off the claim, but pleaded to the scire facias “the matters of fact alleged in the affidavit of defense.” One of the facts alleged in the affidavit of defense was that the claim “was not signed by the solicitor of the city of Allentown, nor by any executive officer of the said city of Allentown, as required by sec. 11 of the Act of June 4, 1901, P. L. 364.” But, as already seen, it was not necessary that the affidavit be made by either of these .officials. The plea tendered an issue as to an immaterial fact, and so far as regards the defect under consideration was the same as no plea. In
All of the assignments of error are overruled and the judgment is affirmed.