Coverdill v. Heath

12 Pa. Super. 15 | Pa. Super. Ct. | 1899

Opinion by

Beebek, J.,

The first assignment of error is to the admission of the testimony of plaintiff’s bookkeeper to the effect that the charge in the book, although against Helen S. Heath, was in reality against the defendant. He was asked whether the charge was against “this lady here,” to which lie answered, “It was her that got the goods.” It had already appeared during the trial that the charge in the book had been made against Helen S„ Heath, but that the goods were ordered by Ellen S. Heath, the defendant. The question was therefore a proper one designed to secure an explanation of this mistake in the charge. Alt doubt on the subject was subsequently removed by defendant’s counsel on cross-examination of plaintiff when he drew from the latter the statement that he had told the defendant that he had opened this account with her. The second assignment of error need not be noticed as it is not in accordance with our rules. It contains neither the testimony of the witness bearing on the question whether the book was one of original entry, nor does it contain any part of the account objected to. The third assignment likewise violates our rule as it only gives the offer of proof objected to and fails to give the evidence received to sustain the offer. For aught that appears by this assignment there was nothing but an offer to prove something, which was objected to by defendant, whose objection was overruled and exception granted to her. If this is all that oocurred she cannot very well complain that she has been injured.. If the offer was followed by proof we ought to know what it was. Our rule if complied with would give us this information, but as it has not been observed we cannot consider this assignment.

We cannot agree that that part of the charge, embraced in the fourth assignment, is open to the numerous objections now made. It was a fair statement of the plaintiff’s contention. So far as the objection is that the court erred in speaking of the materials delivered as used “ in the construction of these two houses ” and “ embraced in the lien,” it is sufficient answer to say that the evidence shows that the defendant herself made the contract for them with the plaintiff, and gave him the location of the houses, that the book account showed what the articles were, that the plaintiff testified, in cross-examination, that he had filed a lien against two houses on this street, and that defendant’s counsel admitted that the defendant was the owner of the premises described in the sci. fas. when the goods were ordered and the writs issued. In addition it appears by the first, fifth, sixth and seventh points for charge submitted to the court by defendant that she was defending on the ground that no mechanics’ liens could be filed against the two houses mentioned in the liens, for it was these two houses that were described in the writs which brought her into court. In view of all this evidence it may be safely said that the court, the parties and the jury all understood that liens had been filed against defendant’s two houses, which liens claimed to recover the value of the materials set forth in the book account, and it was therefore natural and proper for the court to speak of these materials as used in the construction of these two houses and embraced in the lien.

There is no merit in the fifth assignment. The court was asked to say that plaintiff’s books did not show that the materials specified in the claim were sold and delivered on the credit of the buildings. This was affirmed, and in the answer the court further called the attention of the jury to the fact that the goods were delivered after and in pursuance of the contract made with the defendant. It was proper for the court to do so. The point was evidently designed to have the jury’s attention called to the fact that the books, standing alone, did not show a sale and delivery to the credit of the buildings. When the jury was so instructed it was right for the court, at the same time, to call its attention to other evidence which, if believed, supplied the missing link pointed out by the point.

The sixth assignment is to the answer of the court to the seventh point of the defendant asking that the jury should be instructed that brushes, balls of twine, tin bucket, nail punch, bucket rim and poultry wire were not proper items of a mechanic’s lien and no recovery could be had. As to some of the brushes, and all the balls of twine and poultry wire, the evidence shows that these articles were not embraced in the lien. They were stricken out of the account when the lien was filed. As to the tin bucket, nail punch, bucket rim and some paint or varnish brushes, it was plaintiff’s evidence that these were ordered and furnished to the defendant or her son upon orders from Mr. Heath, who was building the houses, and that they “went into the erection of these houses ” against which he had filed a lien. Defendant offered no evidence to contradict this, in fact she offered no evidence whatever. Under such circumstances the court affirmed the point, unless the jury found from the evidence that these articles were materials used in or about the erection or construction of the buildings. Appellant argues that the court should have instructed the jury that these articles could not have been used for the erection or construction of the buildings. No authority has been cited to us nor have we been able to find any which shows that the court must decide, as matter of law, what can and what cannot be used in the erection and construction of a building. So far as the practice is known to us, it has always been to submit this question to the jury. What can or cannot be used in the erection and construction of a building would seem generally to be such a pure question of fact, that we are not prepared to say it was wrong for the court to have left it to the jury in the present case. The seventh assignment is to the refusal of the court to give binding instructions for the defendant. This needs no discussion. The eighth is to the entry of judgment on the verdict. The jury returned a verdict “ for plaintiff, one lot, $62.72, the other, ¡162.72.” By agreement the two sci. fas. were tried together before the same jury. The objection is that this verdict is neither clear nor intelligible. It seems both to us. The jury evidently meant to return a verdict against each lot for the sum named. If entered in that way it can do defendant no more harm than if it had been entered after the jury had returned a verdict containing an accurate description of the buildings erected upon the lots whose metes and bounds had been given. In any event we think it a mere irregularity which can be amended at any time by making it conform to the descriptions accurately set forth in the two sci. fas. on trial.

All the assignments of error are overruled.

Judgment affirmed.