Lee v. Exeter Club

9 Pa. Super. 581 | Pa. Super. Ct. | 1899

Opinion by

Beaver, J.,

The plaintiff, a subcontractor, filed a mechanic’s lien against the building of the Exeter Club, describing the owner and contractor or builder. He is to be held to a strict compliance with the provisions of the Act of June 16, 1836, P. L. 695, sec. 11, which prescribes the requisites of the claim of persons entitled to a lien thereunder, because, as a subcontractor, he is bound to give to the owner full information as to character, quantity and price of the several articles furnished by him to the contractor in and about the erection and construction of the building sought to be held as a security for his claim. The obvious reasons for this particularity have been many times pointed out in the adjudicated cases.

Exception was taken by the defendant owner to the suffi ciency of the lien filed, on the ground that the item contained in the statement thereto attached of “mldgs., doors and sash, as per est. $411.78,” was a lumping charge; that it had no date and was in no way connected with 102 items previously contained in the statement, the first of which has the date February 25 under 1897.

The court below held that this charge did not show upon its face that it aggregated the sum of the items previously contained in the statement and that, if it did, it was a “ lumping charge ” and was, therefore, not such a specific statement of the amount of each item contained in the bill as is required under the provisions of the act of 1836, supra. The lien was, therefore, stricken off as to this particular charge but held good as to the remainder of the statement, which consisted of items against which the amount or value of each one appeared.

This action of the court and the refusal to allow an amendment to remedy the defect constitute the only errors complained of by the appellant.

Since Noll v. Swineford, 6 Pa. 187, the Supreme Court has uniformly held that what has come to be known as a “ lumping charge ” in a statement attached to a mechanic’s lien is not sufficient. In this case there was a single charge for materials furnished and work and labor done. Russell v. Bell, 44 Pa. 47, was of the same character. So also was Lee v. Burke, 66 Pa. 336. In Fahnestock v. Speer, 92 Pa. 146, however, the charge was for gutters, spouting and roofing, as to which it was said: “ The first item is a lumping charge and, as the claim was filed by a subcontractor against the owner and contractor, it was clearly bad and would have been stricken out on motion.” In Brown v. Myers, 145 Pa. 17, a claim for painting and glazing, as per contract, was held to be bad. In McFarland v. Shultz, 168 Pa. 634, the claim was for “ grading and digging lots and carting away dirt from the same,” the amount chargeable to each house being separately specified. This was held to he had, in that it did not adequately set forth the nature and kind of the work done nor when it was done; and in Wharton et al. v. Investment Co., 180 Pa. 168, in which the claim was described as “for the furnishing of the materials and the erection and putting in position of one 70-horse power Wharton-Harrison boiler in the said building, with feed water heater, blow-off tank and Worthington duplex pumps, as set forth in the bill of particulars hereto annexed and made part of this claim,” it was held defective, because “ filed by a subcontractor and containing only a lumping charge.”

It follows, from a careful inspection of these cases, that the rule in regard to a lumping charge is being held more and more strictly instead of being relaxed. The earlier cases were those in which work and labor and materials were combined, but in the later cases the rule was applied to the claims of material men alone. Upon the authority of these cases, we feel bound to hold that the charge “mldgs., doors apd sash, as per est. $411.78,” is a lumping charge and is, therefore, not a strict compliance with the provisions of the act of June 16, 1836, supra, which prescribes the requisites of a mechanic’s lien. This upon the grounds, first, that this charge does not seem to be necessarily connected with the items which precede it; and, even if it were, the owner is not bound by the estimate — assuming that est. meant estimate — made by the subcontractor to the contractor, and the items being set forth singly should have had the prices of each attached to them.

At the argument of the rule the plaintiff offered and asked leave to amend, which was denied. In McFarland v. Shultz, 168 Pa. 634, supra, the motion to amend in a similar case was allowed in the court below; but, on appeal in the Supreme Court, it was held that the amendment was not admissible and the judgment was reversed and the rule to strike off the lien was reinstated and made absolute.

Upon a careful consideration of the whole case, therefore, we feel bound by the authority of the cases which we have cited to sustain the ruling of the court below upon both questions raised by the assignments of error. Decree affirmed and appeal dismissed at the costs of the appellee.