137 Pa. 443 | Pa. | 1890
Opinion,
The claim in this case contains, either in express terms or
As appears by the record, the claim was filed against Laura McGehee, “ owner or reputed owner,” and “ Charles McGehee, her husband,” and sets forth that the shingles were furnished to the contractor with her “ knowledge and consent, .... at her request and the request of her said husband, for the improvement of her separate estate, within six months last past, for and about the erection and construction and upon the credit of the building,” etc. By necessary implication, this is a sufficient averment that Laura McGehee was a married woman when the lumber was furnished at her request. It is also averred that she was the owner of the building and the ground upon which it was erected, and that the shingles “ so furnished were actually applied to the improvement of Laura McGehee’s separate estate, and were necessary for the use and enjoyment of her separate property.” According to all the authorities on the subject, these and other essential averments are sufficiently set forth in the claim, either in express words or by necessary implication. As was said in Einstein v. Jamison, 95 Pa. 403: “If the materials were furnished and used in the improvement of her property by her directions, or with her knowledge and assent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor, the law will give a lien for the value of the materials.” The specifications relating to the refusal of the court to strike off the lien are therefore not sustained.
In two of the remaining specifications, the subject of complaint is that, instead of submitting the. case to the jury on the evidence, the learned judge gave binding instructions to find for the plaintiff. In that there was error, for which the * judgment must be reversed. While the evidence tended to sustain the plaintiff’s claim, it was clearly the province of the jury, and not of the court, to consider the testimony and determine the facts. The remaining specifications are not sustained.
Judgment reversed, and a venire facias de novo awarded.