186 Pa. 168 | Pa. | 1898
Opinion by
Where judgment is entered for the defendant non obstante veredicto it has been frequently said by this Court that correct practice requires two things, first, that the facts shall clearly appear by agreement, case stated or specific findings of the jury, so that they do not have to be searched for, but stand out clearly on the record; and, secondly, that there should be an opinion of the court expressing the grounds of its action. The jurisdiction to enter a judgment against a verdict is special and exceptional, and every step necessary to justify its exercise should plainly appear. In the present case there were two grounds relied on by the defendants in asking judgment in their favor, and the silence of the court leaves us no indication as to which the decision was rested on, or whether upon both. A very little extra trouble on the part of the court at the time by stating its reasons would not only have been just to itself, but would have saved a great deal of labor later to counsel and to us.
The first point made by defendants is that the right to a lien
The defendants’ second ground of objection to the lien is that it is filed against forty-five houses only, although there were sixty-five included in the contract, all of which they claimed to be adjoining in the sense of that word as used in our cases.
Although the apportionment of claims began even before the act of 1831, this question is still open. It has been approached and perhaps touched in previous cases, but always from the other side, upon inquiry what the lien claimant may include. What he must include has not heretofore been definitively settled since the act of 1831. In Gorgas v. Douglas, 6 S. & R. 512, it was held under the act of 1806, that a joint lien against adjoining houses of different owners was bad, but the court expressly declined to pass on the case of houses belonging to the same owner. The latter question came up in the noted case of Pennock v. Hoover, 5 R. 291, which arose before the act of 1831, though not decided in this Court until 1835. It was held that as against one owner the claimant might apportion his claim and have a separate lien against each house, or he might file a joint claim and, in that case, each house would be held for the whole amount. But the effect of the decision went further. There were four blocks of houses, three of three each and one
The next case was Davis v. Farr, 13 Pa. 167, which arose under the acts of 1831 and 1836. Adjoining houses were built by the same contractor under a joint contract with the different owners, and plaintiff, who had furnished materials indiscriminately to the contractor, filed separate claims against the houses, stating in each that he had apportioned his claim pro rata. The lien was held good, and this ruling was followed in Harper v. Keely, 17 Pa. 234.
Chambers v. Yarnall and Young v. Chambers, were argued together, 15 Pa. 265. The owner of a lot having two fronts on parallel streets built a block of eight houses on one front and another of twelve on the other by the same contractor under one contract. In Chambers v. Yarnall, the claimant had furnished materials for all the houses but charged them separately to the two blocks on his books. He first filed a joint apportioned claim against all the houses, and then, fearing that tin's might not be valid, he filed separate apportioned claims against the separate blocks, each for its own materials. The case came up on one of these separate claims and it was argued that the filing of the first claim against all the houses exhausted the right. But this Court held that the first was a nullity on its face, and sustained the second. Young v. Chambers grew out of the same transaction. The plaintiff furnished materials to both blocks, the charges on his books sometimes specifying the particular block and sometimes being to both jointly. He filed separate apportioned claims and, on the trial of one of them, the charges against that block were admitted but the joint charges were excluded. This Court affirmed the ruling, Chief Justice Gibson saying: “ The word ‘ building ’ used in every act on the subject was strictly applicable to a block which, though com-posed of separate houses, was put up as a whole; but it could not be predicated of separate blocks in different streets, which. could in no aspect be viewed as entire.” This decision it will be observed not only held that a claim might be filed in the
The next case, Taylor v. Montgomery, 20 Pa. 443, is of importance, as from it the present state of the law may be said to start. The lot fronted on two parallel streets, and a block of houses was built on each, adjoining only by their yards,.in the rear. This was the exact situation in Chambers v. Yarnall, supra, and the District Court, on the authority of that case, held a joint claim against both blocks to be bad. But the Supreme Court reversed the judgment and entered judgment for the plaintiff, in an opinion by Lowníe, J., of only ten lines, taking no notice of the fact that it was overruling Chambers v. Yarnall, which had been cited, and giving no reason for the decision except that the mechanic’s lien laws did not define the cases in which a joint lien is proper, and such definition must therefore be found in analogy, of which “ the case of joint contracts requiring joint remedies is an obvious one.”
The suggestion of a joint contract as the basis of a joint lien seems to have been accepted by the profession, for in the next case, Goepp v. Gartiser, 35 Pa. 130, it was carried out logically by the filing of a joint lien against three blocks of houses belonging to the same owner, though separated by two small public streets. Here, however, the court drew the line and declined to go any further. The court referring to Pennock v. Hoover, and quoting Chief Justice Gibson in Chambers v. Yarnall, supra, held the lien a nullity and not affected by the case of Taylor v. Montgomery. This rule as to an intervening street is now firmly settled: Schultz v. Asay, 10 W. N. C. 33, 11 W. N. C. 194; Lucas v. Hunter, 153 Pa. 293.
The principle, however, of Taylor v. Montgomery, to the extent of holding that houses may adjoin, in the statutory sense, by their curtilages as well as by their walls, has been accepted and carried out. In Fitzpatrick v. Allen, 80 Pa. 292, the houses were built on parallel streets, running towards each other at the rear but separated there by a private alley; in Kline’s Appeal, 93 Pa. 422, the houses were built in blocks of two, with side
And in the last case on the subject in this Court, Phila. Brick Co. v. Johnson, 162 Pa. 199, the same rule was followed, that the court would not determine the case as matter of law on an affidavit of defense but would send it to a jury for the ascertainment of the facts. The precise question that we have now before us was raised in the argument there, but this Court treated it as an open one, and preferred to wait for the final ascertainment of the facts before deciding it, our Brother Gbeen, saying : “ The affidavit .... also raises a question of fact which may be, and probably is, essential to the determination of two legal questions, to wit, one, whether two apportioned liens on parts of one entire block can be filed in any case, and, if so, whether they can be so filed when, as a matter of fact, the land on which the whole number of buildings was erected was a unit and undivided by any street running through it at the time of the contract. In the present state of the record these questions cannot be decided.”
It appears from the foregoing review, that the earlier precedents, as shown in Pennock v. Hoover and Chambers v. Yarnall, were in favor of a separate lien for separate blocks of houses, although erected on one lot, belonging to one owner, and under one contract. Chambers v. Yarnall decided not only that the lien might be so filed but that it must. On this point as already noted it was overruled in* effect by Taylor v. Montgomery. Since then all the cases before this Court have been contested on the validity of one claim covering all the blocks on an entire lot. Such claims have been sustained, on the principle of Taylor v. Montgomery, to the extent that houses may
There being no controlling decision on the subject we next turn to the statutes. The Act of March 30, 1831, P. L. 243, enacts that “ whereas it sometimes happens that several houses and other buildings adjoining each other are erected by the same owner, so that it is impossible for the person who has found and provided materials for the same to specify, in his claim filed, tbe particular house or other building for which the several items of his demand were so found and provided, .... therefore it shall and may be lawful in every such case for the person so finding and providing materials,” etc., to file with his claim an apportionment of the amount among the said houses, and each of said houses “shall be subject to the payment of its said apportioned share of the debt contracted,” etc. This was the first statutory recognition and regulation of apportionment, and it will be noted that it changes the rule of Pennoek v. Hoover, that in case of a joint apportioned claim each house, shall be charged with the whole. It does not however specify whether the apportionment shall be pro rata absolutely, or in proportion fixed by the claimant. The Act of June 16, 1836, P. L. 699, sec. 13, however, required the claimant to “designate the amount which he claims to be due him on each of said buildings.”
There is nothing in these statutes to prevent the material man filing a separate claim against each block or sub-block of houses, if as frequently happens they are so different in size, style, material, or even in location, that he can readily know to which block “ the several items of his demand ” as the statute expresses it, were furnished. On the contrary, that would seem to be the intent of the act, as indicated in the preamble setting out the impossibility of knowing, etc., as the basis of its remedial enactment. The contrary construction does not seem to
Nor is there any hardship or damage to any one in so doing. Neither parties nor terre-tenants are injured by increase of costs, and the smaller the blocks are, and the more accurately the claims, as filed, correspond with the situation and appearance of the houses on the ground, the easier and the more certainly can the intending purchaser ascertain the beginning of the operation, the finishing of the particular house and the nature, extent and amount of the claims likely to be presented against it. As long ago as Gorgas v. Douglas, 6 S. & R. 512, Chief Justice Tilghman expressed the view that the convenience of purchasers was a matter for consideration when the language of the statute was not clear, and that element is at least as important now as it was then.
We hold, therefore, that where there are blocks of buildings so differing in size, style, material, location or time of erection that the materials or labor going into their construction may be readily distinguished and ascertained, the lien claimant may if he chooses file a separate claim against each block, apportioned among its own constituent houses, although all the blocks are erected by the same contractor under one contract, with the same owner.
Judgment reversed and judgment directed to be entered for plaintiffs on the verdict.