9 Pa. Super. 344 | Pa. Super. Ct. | 1899
Opinion by
The record in this case shows that the only exception taken-in the court below was to the action of the court in overruling a motion for nonsuit, which action was not a subject for exception. The plaintiff having filed his mechanic’s lien in due form •issued a scire facias thereon, the defendant filed an affidavit of defense, in which the only grounds of defense alleged were as to the quantity and quality of the material which went into the building, and that a part of the claim had been paid. The pleas were nil debet, sehoff and payment. At the trial the only evidence offered by defendant was confined to the quality of the bricks which the plaintiff had furnished, and which actually went into the building. The defendant endeavored to show that the bricks furnished by the plaintiff, and used in the construction of the building, were so soft and defective that it would be necessary to remove many of them from the walls and replace them with hard bricks, and that, as a consequence, the building had been damaged. The only question of fact which the jury was called to pass upon was the value of the bricks used in the construction, and what, if any, damage the defendant suffered as a consequence of defective material. In an exceedingly clear charge, the learned judge who tried the cause fully commented upon the law applicable to every question upon which the jury had to pass under the evidence. The defendants were so well satisfied with the charge that they did not take even a formal exception, and made no request that the charge be filed of record. The jury having found against the defendants, they have appealed to this court, and while there are four assignments of error, they are all based upon one alleged error, viz : “ That the learned court erred in failing to instruct the jury that if the evidence produced indicated that the materials were not furnished on the credit of the building, no recovery could be had by the plaintiff.” This is simply a complaint that the charge was inadequate. If the defendants, at the time, thought that the question whether or not the materials had been furnished on the credit of the build
In the case in hand there is no question that the plaintiff did furnish the materials for the construction of this building, intending that they should be used in said building, and that they were so used. This made out for plaintiff a prima facie right to a lien, and put upon defendant the burden of showing that the materials were not furnished on the credit of the building. Upon that point the defendant presented no evidence, but now contends that the testimony of the plaintiff indicated that the materials were not furnished on the credit of the building. We have carefully considered the testimony of the plaintiff, and
Plaintiff refused to sell to the contractor upon his individual credit, he never agreed with the owner to waive his right of lien, and promptly after completing his deliveries to the contractor at the building, he made known to the owner the amount of his claim.
In view of the facts that the undisputed evidence gave the plaintiff a prima facie case upon the point now raised, that his testimony contained nothing which impaired that case, and that defendant made no offer of evidence upon the subject, we find no error in the charge of the court.
Judgment affirmed.