Collins v. Pennsylvania Railroad, Appeal, No. 35

Appeal, No. 35 | Pa. Super. Ct. | Dec 11, 1905

Opinion by

Porter, J.,

This mechanic’s lien showed upon its face that the contract under which the plaintiff furnished the materials was made with a person other than the owner, and it was essential, under the provisions of paragraph 11, sec. 11 of the Act of June 4, 1901, P. L. 481, that it should state “ when and how notice was given to the owner of an intention to file the claim.” The court below held the notice set forth in the claim to be insufficient, under the provisions of the 8th sec. of the act of June 4, 1901, and struck off the lien.

We have held, in The Wolf Company v. Pennsylvania Railroad Company, ante, p. 439, that if in a case of this character it appears upon the face of the record that the notice given failed to meet the requirements of the section of the statute referred to, the lien should be stricken off. The right of the plaintiff to file a lien is founded upon the statute, which makes the giving of the notice, required by the 8th sec. of the act, a condition precedent to the exercise of the right. The legislature has made the right of a subcontractor, intending to file a claim, dependent upon his giving the owner written notice to that effect, “ together with a sworn statement setting forth the contract under which he claims,” etc. The vital elements of a contract are the covenants which it contains, and a statement which does not furnish the owner with information as to the substantial covenants of the contract does not meet .the requirements of the statute. The only information which the notice served upon these defendants'conveyed as to the nature of the contract was that: “ The said lumber was furnished by me in pursuance of a verbal contract between Seeley, Son & Co. and myself.” This only informed the ‘ defendants as to the character of the evidence by which the covenants of the contract were to be established, but left them wholly in ignorance as to what the contract really was; and bound the plaintiff to nothing. He might, untrammeled by this notice, prove any covenants, made at any time, so long as those covenants were verbal. This was not the character of notice to which the owner was entitled.

The order of the court below is affirmed.