211 Pa. 7 | Pa. | 1905
On February 8, 1901, Charles Hart & Son commenced tearing down the old building which stood at the corner of Fifteenth and Market streets, Philadelphia. This was preparatory to a contract which they expected to get from the Commercial Trust Company for the erection of a new building on the site of the old one. At the time they had no contract with the owner, the Commercial Trust Company, nor any other person who had power to contract for even the demolition of the old building. Furness, Evans & Company who represented as architects the Arcade Real Estate Company told Hart & Son that they might at their own risk and their own responsibility tear down the old building. Hart & Son, doubtless knowing that the old material was probably worth the risk, tore down the building. While the work was going on, February 9, 1901, Hart & Son ordered hemlock and pine lumber from Charles Benton to the value of about $2,500, which was principally if not all used in scaffolding, “ shoring up ” and for other temporary purposes.
Under Oppenheimer v. Morrell, 118 Pa. 189, and like cases, the court below took this view of the evidence and instructed the jury to find for defendant. The new building was to be erected at a most important and conspicuous point in the city, was to be of stone, brick and iron. No one knew better than the material man, that his sap pine and hemlock boards, ranging from $15.00 to $20.00 per thousand, could not reasonably, properly form part of such a structure. This of itself would not have excluded the material man from a right of lien, but it cast on him the burden of showing that the lumber actually entered into the structure or that it was furnished the contractors on the credit of the building by reason of the latter’s contractual relation with the owner. On this point the plaintiff’s proof wholly failed. He showed that at the date the lumber was ordered Hart & Son were engaged in tearing down the old building and to that extent were in possession of the ground, but this was not by contract with or permission of the owner, this defendant, but by permission of architects acting for another company; and, further, the contractors were distinctly told that if they proceeded to demolish the old building they must do so at their own risk. There was no relation of contractor and owner whatever as yet between them and the trust company, the owner; that relation came into existence not until three days later. But when it was created eight days after the lumber was ordered, it contained the fatal stipulation by Hart & Son that no lien should be filed.
It cannot be plausibly argued, from the mere fact, that because Hart & Son were taking down the old building when
While many supplements intended to favor mechanics and material men have been passed to the act of 1836, there are still some cases where the owner can aver that his property is protected from wholly unauthorized claims. This is one of them.
All the assignments of error are overruled and the judgment is affirmed.