Curti v. Hartrick

61 Pa. Super. 447 | Pa. Super. Ct. | 1915

Lead Opinion

Opinion by

Henderson, J.,

The plaintiff filed a lien against the defendants for a claim arising out of a contract between him and the contractors for the owner, for the stone, cement, tile and other work necessary in the construction of the foundation of a dwelling house erected by the owners on their land. The claim sets forth the following items :

Furnishing materials and building foundation for dwelling-house, 100 perch stone, including lime, cement, sand and labor laying same at $4.75 per perch,..........................$475.00

8 window sills and setting same $1.00 per sill,.. 8.00

Material and labor building concrete footing course,.................................. .50.00

Cut stone chimney cap, 2 door sills and step, .. 87.00

4 perch extra stone on height of wall at $4.75 per perch, ................................... 19.00

4 hours’ extra labor at 25 cents per hour,...... 1.00

At the trial the-court instructed the jury that plaintiff was entitled to a verdict and judgment was accordingly entered.

Objection is made that the lien covers more than one building and that the claim cannot be sustained for that reason. This objection arises out of the fact that the lot on which the house was erected contained about seven acres and that a tenant house and barn were erected about the same time, which latter buildings are referred to in the lien. It is obvious, however, that the claim is filed against the dwelling-house and that the reference to the tenant house and barn is by Avay of description of the whole lot. The objection is really against the inclusion of so much land in the curtilage but this is not sufficient to defeat the lien. In the case of Black v. Hartrick, 247 Pa. 504, which was the case of a lien against the same premises and the same defendants, it was held that the lien should not be stricken down because more land was included in the description of the curtilage than was reasonably necessary for the general purposes of the residence and that if the question became a material one application might be made to the court below to have the curtilage defined and the lien limited to the boundaries thus ascertained. The same conclusion was reached in the case of Bennett Lumber & Manufacturing Co. v. the same defendants, in the case of a lien against the same premises in an opinion this day handed down in this court. Exception is taken to the bill of particulars attached to the lien on the ground that the prices are not itemized and that lumping charges are contained therein. As to all of the items except that for material and labor building concrete footing course $50.00 and 4 hours’ extra labor át 25 cents per hour $1.00, the specifications are sufficient under the authorities. The work was done by contract and the price per perch of stone in the wall is set forth in the usual way and with sufficient particularity to put the defendant on inquiry. The same is true with reference to the window sills, the chimney cap and door sills and step. They were part of the building open to observation and the owners could not have had any difficulty in satisfying themselves as to the correctness of the bills. This portion of the claim is clearly within the rule declared in Wilson v. Canevin, 226 Pa. 362. The items for labor and material and work in building the concrete footing course and for 4 hours’ extra labor at 25 cents per hour $1.00, are not sufficiently specific. A claim of the same character was excluded in Shields v. Garrett, 5 W. N. C. 120: Wharton v. Real Est. Investment Co. of Philadelphia, 180 Pa. 168. These items give no information as to the material used or the labor involved or the extent of the construction and the last item gives no information as to the character of the labor or upon what it was applied. The amount of the claim should have been reduced to the extent of these two items.

It is further objected that the notice of the intention to file the lien is insufficient because it includes a specification of claims against three separate buildings on each of which work was done by the plaintiff. The object of this notice is to inform the owner of the demand and its nature, to the end that he may require payment by the contractor or secure himself against double payment. No particular form of notice is required and it is not a valid objection to a particular notice that more is contained therein than is relevant to the claim: American Car & Foundry Co. v. Alexandria Water Co., 215 Pa. 520; Day v. Pennsylvania R. R. Co., 35 Pa. Superior Ct. 586. The statute requires that a subcontract- or who intends to file a lien against property must give the owner written notice, verified by affidavit setting forth the name of the party with whom he contracted, the amount alleged to be still due, the nature of the labor or materials furnished and the date when the last work was done, or materials furnished. The claimant has complied with these requirements of the statute in the notice given. The prima facie case of nonresidence of the owners was made out by the affidavit of proof of service of the notice and the operation of Rule VIII of the Court of Common Pleas of Allegheny County. The material averments of the lien and the proof of service were not directly and specifically traversed and denied and are to be taken as admitted.

The objection as to the time when the lien was filed with reference to' the date of the completion of the work is not well taken. The period within which the work was done under the contract and the time when the last work was done are set forth with sufficient definiteness to sustain the claim. On an examination of the whole case we are not satisfied that any of the assignments can be sustained except that affecting the lumping charge for the construction of the footing course and the charge for extra labor, the two items amounting to $51.00.

The judgment should be reduced to the extent of these two items, with interest thereon from the date of the verdict, and the judgment as thus modified is affirmed.

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Dissenting Opinion

Dissenting Opinion by

Kephart, J.,

November 29, 1915:

For the reasons assigned in the dissenting opinion filed in Bennett Lumber Company v. Hartrick, I would reverse the judgment.