Gray v. Dick

97 Pa. 142 | Pa. | 1881

Mr. Justice Trunkey

delivered the opinion of the court, February 7 th 1881.

A supplement to the Act of 1836, relating to mechanics’ liens, provides: “ It shall be lawful for any mechanic or material-man in the city or county of Philadelphia and county of Chester, who performs work and furnishes materials, to include both iti the same claim filed ; and where the value or amount of the work or materials can only he ascertained by measurement when done, or shall he done by contract for a stipulated sum, it shall be lawful to file a statement of the time when the work was commenced and when finished, and of the aggregate price of the work and materials:” Act of March 24th 1849, Pamph. L. 675. The plaintiff submits that the claim filed complied with the requisites of this act. It was a literal compliance, and the sole question is whether the plaintiff comes within the intendment of the statute.

The contract was not made with the owner; he was not a party to it, and presumably knew nothing of it. Such a contract would not be evidence of tho sum which the owner ought to pay, nor of the amount of the claimant’s lien on the building. The mechanics’ lien laws have not invested contractors with power to obtain work and materials and bind the building for a larger sum than such work and materials are worth. As a general rule, the claim shall set forth the nature or kind of the work done, or the kind and amount of materials furnished, and the time when the work was done or materials were furnished, with reasonable certainty. This is the mode prescribed for giving the owner of the building information of the grounds of the claim; and, formerly, it had to be observed by contractors as well as by claimants with whom the owner had no contract relation.

The Act of 1845, Pamph. L. 538, provided for tho case of a special contract made by a mechanic with the owner for the erection of a building or a part thereof; and in such case it is not required to sot out in the claim the nature or kind of work, or kind and amount of materials furnished, for there is no reason for application of the general rule>: Young v. Lyman, 9 Barr 449. Each party to the contract has knowledge of the claim under it, and the reason for furnishing particulars does not exist. That supplement declares that the Act of 1836 shall “ extend to and embrace claims for labor done and materials furnished and used in erecting any house or other building, which shall have been or shall be erected, under or in pursuance of. any contract or agreement for the erection of the same;” but, notwithstanding its general terms, it was decided that it did not place a sub-contractor on the same footing with the contractor- — he continued bound to set forth particulars in his claim as directed by the Act of 1836, or his lien would fall: Russell v. Bell, 8 Wright 47; Lee v. Burke, 16 P. F. Smith 336. Among the reasons given in those cases for strict' construction are: The sub-contractor is entitled to no more than the fair market value of the work done and materials furnished on the credit of the building,-and hence the owner should be informed by the claim filed as to the particulars of the claim, that he may make the necessary inquiries to satisfy himself of its justice as a lien on his property. The agreement between the contractor and sub-contractor is not the measure of the owner’s responsibility; bis building is bound for no more than the value of the work done and materials furnished by the sub-contractor, and he has a right to insist on compliance with the requisites of the Act of 1836.

Every reason given for the distinction of the contractor under the supplement of 1845 applies in full force to the supplement of 1849. If the latter includes only those who contract with the owner, it harmonizes with the previous legislation, and wrongs nobody. But if it embraces sub-contractors, the owner of the building in this case has all the particulars he is entitled to, namely, the contract price which the contractor agreed to pay for stonework done by the claimant between March 5th and September 14th 1878. What light does that give one who is called on to pay a debt owing by another man ? It is sufficient for the victim to see the amount demanded, but not to see that it is right. Unless imperatively required by the words of a statute, it should not be made an. instrument of rank injustice. Not only is the right of lien a privilege to a favored class of creditors in addition to all remedies common to other creditors, but this supplement is local, limited to two counties. Therefore, by universal rules, it must receive a strict construction as to the persons and subjects to which it relates. Where a mechanic or material-man contracted with the owner, and the value of the work or materials can only be ascertained by measurement, or is stipulated in the contract, it is enough to give the aggregate price with the dates of commencing and finishing. There is reason in that the parties stand equal. In such case, the contractor is within the words and intendment of the statute. Sub-contractors and persons who work for or sell materials to contractors are not necessarily included in the language of the statute, and we think are clearly without its intendment.

It is unnecessary to remark upon the question raised by the second assignment. If the motion to strike out was for the purpose of validating the claim under the alleged contract, it was rightly refused: Fahnestock v. Wilson, 9 W. N. C. 385.

But for the special circumstances, this writ of error would be quashed, even without motion. Consent of parties will not induce review by piecemeal. However, we were statisfied that a decision either way would end the dispute, and consider the case as if the claimant’s motion had been granted by the court below.

Judgment affirmed.