McCrum-Howell Co. v. Empfield

50 Pa. Super. 551 | Pa. Super. Ct. | 1912

Opinion by

Morrison, J,

The McCrum-Howell Company, plaintiff, a subcontractor, filed a mechanic’s lien on June 17, 1908, against the defendants, owners or reputed owners, and the contractor in pursuance of a notice of the intention to file such lien attempted to be given in pursuance of sec. 8, Act of June 4, 1901, P. L. 431. This section was amended by the Act of March 24, 1909, P. L. 65, but it is not contended that this amendment is retroactive and of course the notice must stand or fall under sec. 8 of the act of 1901. It is conceded that the notice was filed in due time and the most important question for decision is the sufficiency of the notice. In other words, does it comply with said section eight?

At the trial the learned court below was requested by defendants’ counsel to give a binding instruction in favor of the defendants. The court refused to so instruct and, on proper motion, the defendants asked for judgment non obstante veredicto upon the whole record, and upon argument and due consideration the learned court, on January 29, 1912, granted judgment for the defendants non obstante veredicto, to which order the plaintiff excepted and hence this appeal.

The notice was as follows:

“mechanic’s lien.

“ NOTICE OF SUB-CONTRACTOR TO OWNER.

“To Ed. Empfield, owner of building or improvement, situated southeast corner Philadelphia and Sixth Streets, Borough of Indiana, Pennsylvania.

“Sir:

“Take notice, that three months have now elapsed since the last materials furnished by us in and about the erection and construction of said building and there is now due me the sum of Sixteen hundred twenty-eight and 91-100 Dollars for materials furnished as aforesaid, with interest from February 24th, 1908. Wherefore we intend to file a lien according to law upon the expiration of one month from the day of the service hereof upon you or your agent agreeable to Section 8, of the Act of Assembly approved June 4th, 1901.

“ The McCrum-Howell Company,

“ L. Preston Gates,

“ Assistant Treas.,

“ Sub-contractor.

“ Dated this 17th day of March, 1908, at Indiana, Pennsylvania.

“ Note. — When Lien is filed for repairs, alterations, &c., above notice must be served within forty-five days after work is completed. See secs. 8 and 10 of Act of 1901, P. L. page 435.

“sworn statement.

State of Pennsylvania County of Indiana ss.

“Before me personally came L. Preston Gates, Assistant Treasurer of The McCrum-Howell Co., who signed the foregoing notice and being by me duly sworn according to law, did depose and say that the contract under which they claim is as follows: Yerbal orders received from The Pennsylvania Supply Company, of Jeanette, Pa., that the amount still due and owing to them under said contract is the sum of Sixteen hundred twenty-eight 91-100 Dollars, with interest from February 24th, 1908, which is made up as follows, to wit (here insert debts and items with credits if any):

17 Enameled iron bath tubs,.......... $189.89

73 Enameled iron lavatories,.......... 433.16

1 Sectional cast iron boiler,.......... 363.01

100 Pounds asbestos cement,.......... 1.50

103 Cast iron radiators,................ 618.67

24 Loose cast iron radiator sections,.... 22.68

$1,628.91.

“That the kind of labor furnished was none. The materials furnished as above and the date when the last materials were furnished was on the 24th day of December, 1907.

“ L. Preston Gates.

“ Sworn to and subscribed before me this 17th day of March, a. d. 1908.

“J. A. Crossman,

(seal) Justice of the Peace.

“ My commission expires on the first Monday in May, 1908. ”

So much of sec. 8 of the act of 1901 as is material to the question we are now considering reads as follows: “Any sub-contractor, intending to file a claim, must give to the owner written notice to that effect, together with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished and the date when the last work was done or materials furnished.”

A very important thing in this section is a statement setting forth the contract under which he claims. It will be observed that the notice served in the present case contains, as to the contract, only “verbal orders received from the Pennsylvania Supply Co. of Jeanette, Pa.” If the contract had been in writing no one would contend that a statement that the contract was in writing would be a compliance with the law. It must be conceded that in such case the written contract must be embodied in the notice and sworn statement, or the same, or a copy thereof, attached thereto. Now we are unable to see why it is not just as necessary to set forth the substance of the verbal contract. What was this contract? The language “verbal orders received from the Pennsylvania Supply Co.” conveys no information as to the terms of the contract. It is contended earnestly by appellant’s learned counsel that taking the notice all together it is sufficient because it states the total amount due for enameled ware bath tubs, enameled iron lavatories, one sectional cast iron boiler, 100 pounds asbestos cement, 103 cast iron radiators, twenty-four loose cast iron radiator sections and to each of these items the total price is carried out. But the owner was entitled to know what the verbal contract was. What was the kind and quality, for instance, of the enameled iron bath tubs? Were they all alike and of the same price? Or did they differ in quality and price or in size? And so as to the other articles. Surely the owner was entitled to know what the contract was as between the contractor and the subcontractor and then he could investigate and ascertain whether or not the articles were furnished of the quality, size, workmanship and material and at the price agreed upon. But from the information contained in the notice, how could the owner protect himself against unreasonable charges? To illustrate — suppose the verbal contract for the seventeen enameled iron bath tubs was that they were to be furnished for $150. In such case it will hardly be contended that the owner could be compelled to pay $189.89 for said tubs. The very serious defect in this notice and sworn statement is apparent and it all comes back to the point that the sworn statement absolutely fails to set forth the contract under which the plaintiff claims.

The plaintiff’s learned counsel relies on the following authorities as to the sufficiency of the notice under the eighth section of the act of 1901: Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521; Willson v. Canevin, 226 Pa. 362; Thirsk v. Evans, 211 Pa. 239, and Day v. Penna. R. R. Co., 224 Pa. 193, but we do not think these cases sustain their contention. McVey v. Kaufemann, 223 Pa. 125, is a strong authority against the sufficiency of the plaintiff’s notice in the present case. In that case it was held (syllabus): “A mere statement in the notice that a contract existed without stating the date, dr any of its terms, or whether it was written or oral, is insufficient.” In it Mr. Justice Brown said: “The evident purpose of the requirement that a subcontractor must set forth in his notice to the owner of the building the contract under which he claims is to enable the owner to know just what the rights of the claimant are and to protect himself accordingly.” A statement that the contract is verbal does not enable the owner to determine what the rights of the claimant are under the contract.

In Hart v. Lehigh Valley R. R. Co., 41 Pa. Superior Ct. 224, we held as stated in the syllabus: “The notice required to be given by a subcontractor to the owner under the mechanic’s lien Act of June 4, 1901, P. L. 431, must set forth the contract and the amount alleged to be still due ‘and how made up.’ This provision is obligatory on him who would claim the benefits of the statute. Compliance with that which is specifically directed is necessary to secure a lien. Substantial conformity will not answer as to that.”

The view we take of the insufficiency of the notice renders the lien bad and therefore it is not necessary to consider the assignments of error separately. We have reached the conclusion that the learned court below was fully warranted in directing judgment for the defendant non obstante veredicto on this ground alone.

The assignments of error are all dismissed and the judgment is affirmed.