219 Pa. 579 | Pa. | 1908
Opinion by
From the nature and character of the affidavit of defense filed, and the manner in which this case was proceeded with, we must conclude that the effort of both sides, to some extent at least, was to try the case upon its merits. The attempt led to peculiar results. Ordinarily the affidavit of defense constitutes no part of the pleadings, but our recent act relating to mechanics’ liens contemplates that the real issue in such cases is to be defined through affidavit and counter affidavit. The issue of fact upon which the case was made to turn, would not have been possible under the plaintiffs’ statement of claim according to the ordinary rules of pleading. The claim filed set out a contract with the defendant company, to superintend for it the erection and construction of the buildings therein described, and to purchase the materials and secure the labor required ; for which service plaintiffs were to receive as compensation ten per cent of the entire cost of the buildings, certain items to be excluded. It averred further that the service plaintiffs had contracted to perform had been rendered, and the demand was for the sum stipulated, based on the entire cost. The contract here set up was an entire one, and the
Defendant’s counsel submitted the following point: “ This being a proceeding upon a mechanic’s lien, the plaintiffs cannot recover in the action, except for superintendence actually done up to the time they were discharged and material then purchased under the contract.” Here we have a standard for determining the amount plaintiffs are entitled to recover, quite as mistaken as that adopted by the court. Nothing short of an admitted agreement between the parties that it should be the proper standard could make it so. The case was tried on the lien as filed, for an entire contract, or it was tried apart from the contract on a quantum meruit, one or other. In neither case could the standard here set up obtain. The court committed no error in refusing the point, and the assignment relating to this action by the court is overruled. For the error committed by the court in the general charge to the jury, above referred to, the case must be sent back for another trial. Because of the pleadings and the manner in which the case was tried complications have resulted, but it is not for us to remove these.
Judgment reversed and venire facias de novo awarded.