| Pa. | Oct 25, 1851
The opinion of the Court was delivered, by
This judgment is reversed. The Court took the case from the jury by positive and binding direction, when the issue turned on matter of fact, about which there was evidence on both sides.
Whether the last work done by the mechanic was part and parcel of the original job or not, depended upon evidence, and upon the finding of that fact the lien depended. It was useless to discourse to us about the different kinds of wheels and machinery in a saw-mill, and the different modes of construction; and whether one kind of a mill might be considered as finished without machinery which is required in another mode of construction.
The question is, whether the topping out done by the mechanic waq, part of the original agreement, and was the crowning work of his job or not, and whether it was done in due time, without unreasonable delay, by consent of Winslow; or whether it was a distinct contract entered into after his first work was finished.
The Court say, “ there is some evidence that the parties did not consider it (the mill) finished in the spring of 1848, when it went into operation. And there certainly is such evidence on the paper-book.” That evidence the Court ought to have submitted to the jury. Instead of which, they told the jury their verdict ought to be for the defendant; and that the time for entering the lien had expired, thus determining the disputed facts themselves. It is of no manner of consequence that the mill was started by the owner before the last work was done by the mechanic.
Nothing is more common in the country, and even in towns, than the owner and builder of a new house removing his family into it before it is finished. And mills are often started before the last finishing work is done.
Judgment reversed; and venire de novo awarded.