4 Whart. 92 | Pa. | 1839
The opinion of the Court was delivered by
— This was an action of assumpsit in the Court below, brought by B. & J. Naglee against William Linn, in which the plaintiffs declared in indebitatus assumpsit, for lumber and materials found and provided for the defendant by the plaintiffs, alleging in the first and second counts, that they were to be applied in and about, and were furnished on the credit of a factory and other buildings erected by the defendant, on a lot described. The fact appeared to be, that the defendant was not the owner of the lot or building, but was merely the contractor engaged by the owner to put up the buildings; and the plaintiffs alleged that the defendant had ordered the materials and used them for that purpose. No claim had been filed by the plaintiffs within the six months allowed by the act of assembly in relation to the liens of mechanics and others, but the suit was brought within the period of two years from the time of delivering the materials. Two questions seem to have been discussed in the Court below; and the answers of the Court in relation to them have been assigned as errors here. First, whether the plaintiffs could in this suit charge the buildings themselves;— secondly, whether the defendant was liable as debtor: and on both these points the Court below answered in favour of the plaintiffs.
It was settled by this Court in the case of Klingler v. Rogers, (3 Wharton’s Rep. 332,) that according to the true construction of the act of 28th of March, 1808, and the prior acts, in no case whatever,
A bill of exceptions was taken to the admission in evidence of the plaintiffs’ book of original entries, in which the charges were made to William Linn, for factory, on account of Williams & Nixon— to Williams & Nixon, got by Linn — -Williams & Nixon, got by W. Linn — Williams & Nixon, got by Linn for factory — Williams & Nixon.. It was not, however, till strong evidence had been given by the plaintiffs, tending to show that the defendant had ordered the lumber in question, that these books were admitted by the Court. When they were offered in the first instance, they were rejected,, as they showed no charge against the defendant. But after other evidence was given, tending to substantiate such a charge, then we think the books were admissible to show the amount and price of the articles alleged to be the same, which had been already proved.
Judgment affirmed.