28 Pa. Super. 443 | Pa. Super. Ct. | 1905
Opinion by
The plaintiffs filed an apportioned mechanic’s lien against 132 buildings, of which forty-five fronted on the north side of Reinhard street, forty-four on the south side of said street, and forty-three on the north side of Upland street, all between Sixtieth and Sixty-first streets in the city of Philadelphia. The amount of the claim was $5,909.73, which was apportioned equally among the buildings. The lien averred that Upland and Reinhard streets were -not open or dedicated streets at the
The facts which bear upon the status of Reinhard street, as a public highway, are undisputed. Prettyman, the appellant, was the owner of a tract of land situate at the southwest corner of Sixtieth street and Kingsessing avenue, extending westward about two thirds of the distance to Sixty-first street. No streets had been located over this land by the municipal authorities, no owner had made an express dedication of any part of it as a public highway, and no streets had been opened upon it until after the commencement of the building operation in question. On January 2,1897, Prettyman entered into a written contract with Hughes, under the provisions of which the former agreed “ to advance certain moneys hereinafter mentioned on ground rent to the party of the second part as mentioned below; the party of tbe second part (Hughes) agrees with the party of the first part to purchase from the party of the first part 140 lots or pieces of ground situate on Upland and Reinhard.streets as per plan attached to this agreement, for the price or sum of $64,200 and the party of the first part also agrees to advance in cash to the party of the second part $77,800, making a total of $142,000 ; in consideration of the first party advancing to the party of the second part the above $77,800 in cash, together with the price of the ground as above mentioned, making a total of $142,000, the party of the first part agrees to accept the above amount from the party of the second part by reserving 140 ground rents, being 186 ground rents of $1,000 each principal on the inside houses, and four ground
Hughes, on March 17, 1897, began the work of building upon the ground, the first work being upon the buildings on the thirty-five lots fronting on the north side of the proposed Reinhard street. Hughes made an oral contract with Kline, about April 1, to do all the plumbing and gas fitting for 140 houses to be erected on the property in question, the work to-be done and completed in every respect as in a certain desigr
Prettyman executed a deed to the city of Philadelphia, tendering a dedication of Reinhard and Upland streets from Sixtieth to Sixty-first street, as public highways, which deed was dated and acknowledged May 17,1897, filed in the department of surveys on May 26, registered September 28 and recorded December 22, the dedication having been accepted by the board of surveys on November 1, of the same year. It thus appears that although this deed of dedication was filed with the department of surveys prior to the day upon which the deed, which vested in Prettyman title to the land between the original tract and Sixty-first street was, according to his own testimony, delivered to him, yet that deed of dedication was not made until after the contractor Kline had commenced work upon the ground, and the plaintiffs had begun to deliver materials which were actually being used in the construction of the buildings. Collins, by deed dated June 28, 1897, conveyed to Hughes, subject to the payment of ground rents
The rights of the parties are to be determined as of the time when Kline, the contractor, commenced the work and the plaintiffs the delivery of the materials. Was Reinhard street at that time a public street ? It had never been opened to the the public and used as a street, and if it is held to be such it can only be because of the manner in which the parties had in
The contention of the appellant that 105 of the houses were erected under one contract, and the other twenty-seven under a separate and distinct contract, was settled by the verdict. That only 105 of the houses were erected upon lots embraced in the original contract is true. No houses were erected on the thirty-five lots fronting on the south side of Upland street, which were included within the provisions of the original contract. Twenty-seven houses were erected upon the land which Prettyman purchased after the original operation had commenced. The parties entered into no written agreement with regard to the twenty-seven houses thus erected upon the land next to Sixty-first street. The evidence as to the agreement under which those houses were erected was oral and conflicting. The testimony of Prettyman might have warranted a finding that the original written agreement was so modified as to provide
The judgment is affirmed.